IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO. 27467 OF 2014

Abu Taher

............Accused-Petitioner. -VERSUS-

The State and another ...Opposite Parties.

None appears

............ For both the parties.

Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh, A.A.G.

Mr. A.T.M. Aminur Rahman (Milon), AAG

Ms. Lily Rani Saha, AAG

..............For the State.

Heard and Judgment on: 01.11.2023.

SHAHED NURUDDIN,J:

By this Rule, the accused-petitioner by filing an

application under Section 561A of the Code of Criminal Procedure  sought  to  quash  the  proceedings  of Metropolitan Sessions Case No.2042 of 2014 arising out of C.R. Case No.477 of 2013 under Section 138 of the Negotiable Instruments Act,1881, now pending before the  learned  Joint  Metropolitan  Sessions  Judge,  3rd Court, Dhaka.

Material  facts  leading  to  this  Rule  are  that,  in order  to  discharge  the  loan  liability  the  accused petitioner gave the cheque to the complainant which on presentation  to  the  bank  for  encashment  was dishonored  on  the  ground  of  insufficiency  of  funds. Following  the  procedure  and  in  compliance  with statutory provisions laid down in  section 138  of the Negotiable Instruments Act,1881 the complainant filed the instant case.

The  learned  Magistrate  took  cognizance  of  the offense and subsequently, the charge was framed by the Joint Metropolitan Sessions Judge, 3rd Court, Dhaka. The case is now pending for trial.

Feeling aggrieved the accused petitioner preferred the instant application and obtained the present Rule on 22.07.2014.

Heard  the  learned  Advocates  and  the  learned Deputy Attorney General and perused the record.

On  exploration  of  the  materials  on  record,  it transpires that the complainant categorically narrated the manner of crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed the charge under the same section against the accused petitioner. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise in this  regard  reliance  has  been  placed  on  the  case  of Abdur Rahim alias A.N.M Abdur Rahman Vs. Enamul Haq  and  another  reported  in  43  DLR  (AD)  173. Moreover, we can also rely upon the cases reported in 68 DLR (AD) 298, 72 DLR (AD) 79, and the case of Phoenix  Finance  and  Investment  Limited  (PFIL)  Vs. Yeasmin Ahmed and another reported in XVIII ADC (AD) 490. In the instant case, the accused stand indicted for an offense punishable under the same section. We have meticulously  examined  the  allegations  made  by  the complainant and we find that the offence punishable under the above offence has been clearly disclosed in the instant case against the accused. We have gone through  the  grounds  taken  in  the  petition  of Miscellaneous Case and we find that such grounds are absolutely the disputed question of facts and the same

Therefore we hold that there are sufficient grounds for proceeding against the accused petitioner for going to trial under the same section. To that end, view, we are at one with the learned Judge of the Court below regarding the framing of the charge against the accused.

 In the light of the discussions made above and the  preponderant  judicial  views  emerging  out  of  the authorities referred to above we are of the view that the impugned proceedings suffer from no legal infirmities which calls for no interference by this Court.

In  view  of  the  foregoing  narrative,  the  Rule  is discharged.  The  order  of  stay  granted  earlier  stands vacated.

The  office  is  directed  to  communicate  the judgment at once.

MD. SALIM, J:

I agree.

Hanif/BO