Abdul Aziz Vs. Khaja Abdul Gani

Appellate Division Cases

(CRIMINAL)

PARTIES

Abdul Aziz………………………………………………… Appellant

=vs =

Khaja Abdul Gani and others…………………………….. Respondents

JUSTICE:

K. M. Hasan. C. J

Mohammad Fazlul Karim J

Syed J. R. Mudassir Husain J

JUDGEMENT DATE: 13th August, 2003

section 420/406 of the Penal Code, section 561A of the Code of Criminal Procedure, section 138 of the Negotiable Instrument Act.

A criminal proceeding can be quashed under section 561A of the Code of criminal procedure if the same does not disclose any case or it manifestly appears that there is a legal bar against the institution or continuation of the said proceeding or whether the facts disclose an offence or not can only be determined on evidence being adduced, Since in this case a prima facies case is disclosed in the petition of complaint and the matter is pending before the Magistrate and no evidence has yet been adduced the High Court Division erred in exercising its inherent jurisdiction under section 561A of the Criminal Procedure Code.Criminal Appeal No. 40 of 2001 (From the judgment and order dated 22.6.1999 passed by the High Court Division in Criminal Miscellaneous Case No. 3325 of 1997)

Mr. Md. Nawab AH, Advocate-un-Record. For the Appellant

Mr. Ataur Rahman Khan. No.l Advocate-on Record. For Respondent Respondent No. 2 : Ex-parte.

JUDGMENT

1. K. M. Hasan C. J. This appeal arises out of leave granted by this court by order dated 6.8.2001 in Criminal Petition No. 40 of 2001 from judgment and order dated 22.6.1999 of the High Court Division in Criminal Miscellaneous Case No 3325 of 1997 filed under section 561 A of the Code of Criminal Procedure making the rule absolute.

2. The facts in short are that the appellant as the complainant filed a complaint case against the respondent No.l who took Tk.5 laces from him on false representation that he was the owner of a piece of land situated at S. A. plot No. 774 of Khatian No. 1192 S. A. Khatian No. 2392 and S. A. Dag No. 5953 . Hal khatian No. 2393/3 of Mouza Shahar Dhaka. The respondent No. 1 assured that he would hand over vacant possession of the land and execute a sale deed on receiving balance of consideration money but he failed to do so. Ultimately the complainant came to know that the accused respondent is not the owner of the land. Therefore he asked the accused respondent to refund the entire money. Accordingly, on 25.3.1997 the accused respondent issued a cheque of Tk.5 lacs in favour of the complainant. The chuque was dishonored on 29.3.1997 6.4.1997 and 16.4.1997 by the concerned bank with the comment of not having sufficient fund in the account. The complainant sent a legal notice on 23.5.1997 asking the accused respondent to pay back the entire amount. The accused respondent failed to comply with the notice and C. R. Case No. 1099 of 1997 under section 420/406 of the Penal Code read with section 138 of the Negotiable Instruments Act was filed before the Chief Metropolitan magistrate on 10.6.1997 . The Magistrate took cognizance and also enlarged the respondent NO. 1 on bail.

3. Thereafter, the accused respondent moved the High Court Division in its criminal revisional jurisdiction in Criminal Miscellaneous Case No. 3325 of 1997 under section 561A of the Code of Criminal Procedure for quashing the proceeding and a rule was obtained, Subsequently, a Division Bench of the High Court Division by its judgment dated 22.6.1999 made the rule absolute on the ground that the instant case involved civil dispute and the cognizance taken under the penal section of the Negotiable Instruments Act amounts to abuse of process of law. The proceeding of C. R. Case No. 1909 of 1997 pending in the Court of Metropolitan Magistrate was quashed and the accused respondent was discharged.

4. Leave was granted to consider the following. “Mr. Nawab Ali. the learned Advocate -on-Record, appearing on behalf of the appellant submits that while the High Court Division decided the case on merit though actually there was no evidence adduced as yet. The learned Advocate -on-Record submits that the quashment was ordered merely, on the submission made by the learned Advocate for the accused. It is well settled that a proceeding may be quashed under section 561A of the Code of Criminal Procedure if the Proceeding has not disclosed any case. In the present case it appears that a clear case under the Negotiable Instrument Act has been made out. He submits that the High Court Division illegally quashed the proceeding . He further submits that the High Court Division without any evidence on record erred in not holding that mere intention of the accused respondent is bad in view of the fact that he took money by inducing the complainant appellant in believing that he is the owner of the properties although he was not so and when he was caught the accused respondent issued a cheque which was dishonored on three occasions and thereby committed an offence punishable under section 138 of the Negotiable Instrument Act. The learned Advocate-on-Record contends that the High Court Division before taking evidence decided the case on merit. It is submitted that when a clear case under section 138 of the Negotiable Instrument Act has been made out the quashment of the proceedings in bad in law.”

5. Mr. Nawab Ali, the learned Advocate-on-Record. appearing for the appellant submits that the accused respondent sought relief under section 561A of the Code of Criminal Procedure in Miscellaneous case No. 3325 of 1997 which is a subject matter of evidence and trial and can only be determined by taking evidence.

6. Further there is no bar on proceeding against the accused in both civil and criminal jurisdiction in view of the decision as laid down in 49 DLR(AD) We have considered the submissions of the learned Advocate-on-Record that (he High Court Division erred in quashing the proceedings, The grounds on which a criminal proceeding can be quashed have already been laid down by the Appellate Divisionin several cases including the case of Abdul Quader Chowdhury and others Vs. The State reported in 28 DLR (AD) 38. A criminal proceeding can be quashed under section 561A of the Code of criminal procedure if the same does not disclose any case or it manifestly appears thai [here is a legal bar against the institution or continuation of the said proceeding or whether the facts disclose an offence or not can only be determined on evidence being adduced. Since in this case a prima fades case is disclosed in the petition of complaint and the matter is pending before the Magistrate and no evidence has yet been adduced the High Court  Division erred in exercising its inherent jurisdiction under section 561 A of the Criminal Procedure Code.

7. In view of the above the criminal appeal is allowed without any order as to costs.

Ed.

Source : I ADC (2004),23