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. 51438 OF 2015

Md. Serajul Islam

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

The State and another                   . ...Opposite Parties.

No one appears

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

Mr. B.M. Abdur Rafell, D.A.G. with Mr. Binoy Kumar Ghosh with

Mr. A.T.M. Aminur Rahman (Milon) and

Ms. Lily Rani Saha, AAGs ..............For the State.

Heard and Judgment on: 14.12.2023.

Shahed Nuruddin, J:

By  this  Rule,  the  accused-petitioner  by  filing  an

application  under  Section  561A  of  the  Code  of  Criminal Procedure sought for quashing of the proceedings of Sessions Case No.4817 of 2014 arising out of C.R. Case No.116 of 2014 under Section 138 of the Negotiable Instrument Act,1881, now pending before the learned Joint Metropolitan Sessions Judge,1st Court, Dhaka.

Material  facts  leading  to  this  Rule  are  that  the  allegation brought against the accused-petitioner is punishable under  Section 138 of the Negotiable Instrument Act,1881.

The learned Magistrate took cognizance of the offence and later charge was framed by the Metropolitan Joint Sessions Judge, 1st Court, Dhaka. The case is now pending for trial.

Feeling aggrieved the accused petitioner preferred the instant application and obtained the present Rule on 08.12.2015.

Heard 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  charge  under  same  section  against  the accused. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise with this regard reliance has been placed in 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 case reported in 68 DLR (AD) 298 and 72 DLR (AD) 79. In the instant case the accused stand indicted for offence 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 should be decided at trial. The pleas of the petitioner is nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence  plea  or  materials  the  criminal  proceedings  should  not  be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts, the grounds taken in the petition of Misc. case are  not  the  correct  exposition  of  law.  Moreso  interruption  of  the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuch as the grounds advanced before us are not correct or legal exposition of law. Therefore we hold that there are sufficient grounds for proceeding against the accused for going for trial under the same section. To that end in view we are at one with learned Judge of the Court below regarding framing of charge against the accused. In view of the above we failed to discover any merit in this Rule. Thus the Rule having no merit fails.

Since the ground taken by the petitioner is disputed question of fact  and  all  the  submissions  are  settled  principle  by  the  Hon’ble Appellate Division.

[

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

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

The office is directed to communicate the judgment at once.

Md. Salim, J:

I agree

Hanif-BO