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. 46126 OF 2015

Mohammad Mozahar Showdagor and another ............Accused-Petitioners.

-VERSUS-

The State and another. ...Opposite Parties.

None appears

............ For the petitioner. Mr. Syfuzzaman, Advocate

......... For the Opposite Party No.2. Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh

Mr. A.T.M Aminur Rahman, A.A.Gs.

..............For the State. Heard and Judgment on: 23.11.2023.

SHAHED NURUDDIN,J:

By  this  Rule,  the  accused-petitioner  by  filing  an

application  under  Section  561A  of  the  Code  of  Criminal Procedure sought for quashing the proceedings of Sessions Case No.749 of 2015 arising out of C.R. Case No.453 of 2014 under Section  138/140(1)/140(2)  of  the  Negotiable  Instrument Act,1881,  now  pending  before  the  learned  Additional Metropolitan Sessions Judge, 4th Court, Chattogram.

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. The case is now pending for charge hearing.

Being  aggrieved  and  dissatisfied  with  the  impugned proceedings  the  accused  petitioner  preferred  the  instant application and obtained the present Rule on 18.11.2015.

Despite the matter appears in the cause list for hearing, no one appears to press the rule.  However, in presence of Mr. Syfuzzaman,  the  learned  Counsel  appearing  for  the  opposite party No.2 and the learned Deputy Attorney General, we are inclined to dispose of the rule on merit.

Mr. Syfuzzaman, the learned Counsel appearing for the opposite party No.2 by filing a counter affidavit submits that the petitioner  admitted  that  he  issued  the  cheque  in  question voluntarily in favour of the opposite party No.2 in presence of local elite parsons. The petitioner shall get ample opportunity in the concern trial court to prove his case through a proper trial in which the concern trial Court weigh both parties evidence in support  of  their  cases.  Now,  the  case  is  pending  for  charge hearing and at this stage prior framing charge, the Hon’ble Court has lack of scope and jurisdiction to weigh the facts and evidence in this application, hence the Rule is liable to be discharged. In support of his contention he referred the decision reported in 13 MLR (AD) 184 and 62 DLR (AD) 233.

Heard the learned Advocate for the opposite parties 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.  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. All that is required at the stage of framing charge is to see whether the prima-facie case regarding  commission  of  certain  offence  is  made  out.  In  the instant case the accused stand indicted for offence punishable under  section  138  of  the  Negotiable  Instrument  Act,1881. Cognizance  has  been  taken  under  the  said  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 application under Section 561A of the Code of Criminal Procedure and we find that such grounds are absolutely the disputed question of facts and the same should be decided at the 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 Magistrate regarding taking cognizance against

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