Appellate Division Cases
Amir Hossain………………………………. Appellant
= vs =
M. A. Malek and others ………………………..Respondents
Md. Ruhul Amin J
K. M. Hasan J
JUDGEMENT DATE: 15th April. 2003
Section 342 & 339 of the code of criminal procedure.
Negotiable Instruments Act section 138 (XXIV of 1881)
Lastly, the learned counsel submits that a proceeding, for winding of the Homeland Footwear Ltd, a company owned by the complainant petitioner and the convict respondents, is pending before the Company bench of the High Court Division and as such, continuation of both the winding up proceeding and complaint case will expose the convict respondent to double jeopardy. There is no bar for the complaint case to proceed side by side with winding up proceeding….(19)
Criminal Appeal No. 26 Of 2002 (From the judgment and order dated IS .2. 2002 passed by the High Court Di\ision in Criminal Revision No. 664 of 2001)
Mr. Abdul Malek, Senior Advocate, instructed by Mr. Md.Nawab Ali. Ailvocate -on Record……..For the Appellant .
Faziul Karim Senior Advocate, instructed by Mr. Firoj Shah . Advocate – on – Record….For Respondent No. 1
Stifta Khatunn. Advocte – on -Record……..For Respondent No. 2
B. Hossain. Advocate -on – Record…For Respondent No. 3
1. K. M. Hasan, J. – This Criminal appeal arises out of a petition for leave to appeal preferred by the appellant against the judgment and order dated 18.2.2002 passed by a Single Bench of the High Court Division in Criminal Revision No.664 of 2001 remanding the complaint case No. 882 of 2001 to the trial court i. e. Metropolitan Magistrate, Dhaka after setting aside the conviction and sentence passed by that Court which was upheld by the Additional Sessions Judge. Court No. 1. Dhaka, maintaining the conviction and sentence of imprisonment for 1 year and reducing the sentence of fine from Tk.1.80.00,000/= to 90.00,000/=.
2. The prosecution case is thai the complainant petitioner and convict respondents are partners and rum the business in the name of Homeland Footwear Ltd. The complainant petitioner gave Tk.l.00.00.000/= to the respondents as loan. When the Complainant petitioner asked for refund of the saiil amount the convict respondents issued three cheques of three dates lor Tk.30.00.000/= bearing No. 43700391 dated 15.4.2001. a cheque for TK. 15.00.000/= hearing No. 4379392 dated 15.5.200land a cheque 15.00.000/= bearing No. 4370393 dated 3O.5.2OOI drawn on National bank Ltd. but all the cheques were dishonoured. In spite of request by the Complainant petitioner the convict respondents did not take necessary steps either for the encashment of the cheques or for payment of the money. Therefore, the complainant petitioner served legal notice upon the convict respondents demanding refund of the money within 15 days. The convict respondents having failed to meet the demand, the complainant petitioner filed the Complaint Case No. 882 of 2001 before the court of Chief Metropolitan Magistrate. Dhaka who examined the complainant petitioner under section 200 of the code of Criminal procedure and took cognizance against the convict respondents under section 138 of the Negotiable Instruments Act and issued warrant of arrest. The convict respondents surrendered to the Court on 3.7.2001 and were then enlarged on ad-interim bail on the same dale. In the meantime, the case was transferred to the court of the Metropolitan Magistrate. Dhaka, lor holding trial and 13.7.2OOI was fixed for framing charge. Since 13.7.2001 and 14.7.2001 were holidays the case was taken up b_\ the Metropolitan Magistrate on 15.7.2001 for framing charge .On that date the con\ ici respondents did not appear in the Court nor filed any application for time for their absence. Instead a lawyer appealing on their behalf filed an application For time to enable them to file an application before the High Court Division under section 561A of the code of Criminal Procedure for quashing of the complainant case. The learned Metropolitan Magistrate refused to take notice of the application, declared the convict respondents absconding, framed charge against then under section 138 of the Negotiable Instruments Act and fixed 16.7.2001 for trial. On 16.7.2001 the convict respondents remained absent in the court . Under the circumstances they were tried in absentia under section 339B of the said code and by Judgment dated 17.7.2001 the convict respondents were found guilty under section 138(2) of the Negotiable Instruments Act.
3. The convict respondents preferred an appeal before the Metropolitan Magistrate. Dhaka being Metropolitan Criminal Appeal No. 260 of 2Ool which was dismissed and the sentence of simple imprisonment for 1 year was maintained but fine of TK. 1, 80, 00, 000/= was reduced to Tk. 90,00,000/= with a direction that Tk. 60. 00. 000 /= from the realized fine be paid to the appellant.
4. Against the judgment of the lower appellate court the convict respondents moved the High Court Division in its Criminal revisional jurisdiction in Criminal Revision No. 664 of 2001 and obtained a rule which was subsequently made absolute on the ground , that the trial was proceeded in a very unusual haste, without giving an opportunity to the corn ict respondents to cross- examine the witnesses already examined and without holding any examination under section 342 of the code of criminal procedure. The High Court Division also found that such unusual haste in framing charge and examination of Witnesses within lew days had given latitude to the prosecution at the disadvantage of the accused persons. The High Court Division further observed that as an application under section 561A of the code of Criminal procedure was filed before the High Court Division the trial court should have stayed all further proceeding. The High Court Division concluded that the trial court should not have shown the accused absconding and proceeded under section 339B(2) of the code of Criminal procedure without affording an opportunity to the respondents, with these findings the High Court Division remanded the case to the trial court.
5. Against the judgment the appellant moved civil petition for leave and leave was granted on following grounds:-Because the impugned judgment and order of the High Court Division remanding the case to the trial court is bad in law and under misapprehension of the alleged prejudice to the accused respondent.
6. Becatise the convicted respondent having not surrendered in court or any other authority after dismissal of the appeal, this revision petition was not entertainable / maintainable and because of fraudulently obtaining the Rule and bail and the subsequent Order making the Rule absolute and remanding the ease to the trial court without surrender in court the orders are illegal, void and without jurisdiction.
7. Because the learned Judge of the High Court Division having found that the accused respondents knew that 15.7.2001 was a date fixed for framing charge but their lordship failed to take into account that the accused respondents intentionally and deliberately remained absent without any application for their absence and that they misused the privilege of bail and became fugitive from justice, rendering themselves liable to be tried in absentia under section 339(B) of the Criminal Procedure Code.
8. Mr. Abdul Malek. the learned Counsel, appearing for the appellant submits that the courts below did not commit any miscarriage of justice as all the legal requirements of section 138 of the Negotiable Instruments Act have been fulfilled, the convict respondents were not prejudiced b\ quick disposal of the case, there is cogent reason for the trial court to proceed under section 339B(2) of the code of Criminal procedure, since the examination of the witnesses were done with the full knowledge of the respondents and not behind them but the convict respondents did not appear before the court and lastly, more than 15 days notice is given as required under the law.
9. Mr. Fazlul Karim, the learned counsel, submits that the convict respondents were prejudiced, as they were not given an opportunity to place their case before the court. In fact the trial held by the court below cannot be called a trial at all.
10. He further Submits that under section 138(1) (c) of the Negotiable Instruments Act. the respondent convict being the drawer of cheque is required to make payment within I Sclavs notice from the date of the receipt of the notice, but in this case as the date of the receipt has not been established, it cannot be definitely said that he has failed to pay the demanded money within fifteen days. Therefore, since no criminal action on the part of the convict respondents was established cognizance ought not to have been taken by the court.
11. He also submits that the provisions of the Code of Criminal Procedure is not followed as no cross-examination of the witnesses under section 339B(2) was allowed.
12. The learned counsel then submits that the cheques were issued by the respondents on behalf of the company as its director and not in their personal capacity and therefore, initiation of the proceeding against them under section 138 of the Negotiable instruments Act should not have been allowed by the court.
13. Lastly, he submits that a winding up proceeding of the company is pending before the High Court Division for nonpayment of the same amount. Continuation of the proceeding under section 138 of the Negotiable Instruments Act and the proceeding for winding up of the company at the same time will put the convict respondents under double jeopardy.
14. We have heard the learned Counsel of both sides. Negotiable Instruments Act by its nature is not a cumbersome Act and the proceeding under section 138, once the offence is admitted is summary in nature and there is little scope for taking defence. In this particular case the convict respondents have admitted about the loan issuance of cheques by him and dishonour of those cheques by the bank. He has further admitted that a notice under section 138(1) (b) has been given by the complainant petitioner. Thus all the legal requirements are present to bring the offence under section 138 of the Negotiable Instruments Act. Accordingly, the trial court took cognizance and framed charges. It will be wrong to say that the convict respondents did not know about the trial as he himself filed an application for adjournment before the Magistrate on 15.7.2001 on the ground that an application by him under section 56) A of the code of Criminal procedure was filed before the High Court Division for quashing of the proceeding. In spite of filing the aforementioned application he did not appear before the court on 15.7.2001 and thus absconded after obtaining bail. The High Court Division has taken the view that the trial court has not recorded the reasons as required under section 339B(2) of the Code of Criminal Procedure but in our view the High Court Division has misread the section and failed to realise the real import of it. . Section 339B(2) is to the effect :” Where in a case after the production or appearance of an accused before the court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub – section (1) shall not apply and the Court competent to try such person for the offence complained of shall, after recording its decision so to do, try such person in his absence.”
15. The factual aspects of this case are that after lodging of the complaint , the accused respondents appeared before the court and obtained bail, when the case was taken up on 15.7.2001 he applied for time without appearing before the court. Thus as per the aforementioned section he absconded and failed to appear before the court after his release on bail. Therefore, the court was competent to try the accused for the offence complained of in his absence.
16. It appears from the record that the ease was filed on 1.7.2001 long after the notice was issued on 2.6.2001. So it cannot really he said that the date of receipt of notice by the convict respondent was not established.
17. The Counsel’s submission regarding the accused respondents signing the cheques on behalf of the company as its director and not on his own behalf, absolving him from any liability under section 138, should have been agitated at the trial.
18. Lastly, the learned counsel submits that a proceeding, for winding of the Homeland Footwear Ltd. a company owned by the complainant petitioner and the convict respondents, is pending before the Company bench of the High Court Division and as such, continuation of both the winding up proceeding and complaint case will expose the convict respondent to double jeopardy. There is no bar for the complaint case to proceed side by side with winding up proceeding. In view of the above, the appeal is allowed.
Source : I ADC (2004), 38