Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)

HIGH COURT DIVISION

(Criminal Miscellaneous Jurisdiction)

Mr. Siddiqur Rahman Miah , J.

And

Ms. Krishna Debnath, J.

Judgment

26.05.2010

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Dr. Abdur Rahman

…Petitioner

Vs.

The State and another

…Opposite Parties

Code of Criminal Procedure (V of 1898)

Section 561A

Negotiable Instruments Act (XXVI of 1881)

Section 138(1) (b)

General Clauses Act (X of 1897)

Section 27

Non disclosure of the date of receipt of notice under section 138 (1) (b) of Negotiable Instruments Act is a question of fact which will be decided at the time of trail after taking evidence and non disclosure of date of receipt of notice in the petition of complaint and consequently the failure to disclose the cause of action cannot render the proceedings under section 561A, Cr.P.C liable to be quashed. The notice was issued through registered post with acknowledgement due. Hence it can be legally presumed that the notice has been served properly as per section 27 of General Clauses Act.                                           … (23 and 26)

Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan 60 DLR(AD)195, Ali Akkas vs. Enayet Hossain and others 17 BLD (AD) 44, ref.

None appears             ….For the petitioner.

Mr. Bakir Uddin Bhuiyan

… For respondent No. 1

Mrs. Syed Mizanur Rahman

…  For opposite party No. 2

Judgment

Siddiqur Rahman Miah, J:

This Rule on an application filed  under section  561 A of the Code of criminal Procedure  was issued calling upon the opposite parties  to show cause as to why the proceedings of  Metro. Sessions Case No. 1494 of 2006 arising out of CR Case No. 3247 of 2005 under section 138 of the Negotiable Instruments Act, now pending before Metro-politan Assistant Sessions Judge, 5th court, Dhaka should not be  quashed.

  1. 2.      The prosecution case, in short, is that the complainant is a businessman; that the accused for payment of outstanding money on 02.10.2005 issued a cheque bearing No. 1526509 for an amount of Taka 2,20,000.00 ( Two lac and twenty thousand) to be drawn from an account being Account No. 1425 lying with Janata Bank, Mugdhapara Branch, Dhaka maintained by the accused; that the complainant presented the said cheque for encashment on 03.10.2005 but returned unpaid due to insufficiency of fund and that thereafter the complainant through his engaged Lawyer served a legal notice on 12.10.2005 upon the accused and thereby requested the accused to repay the cheque amount within 15 days but the accused did not pay the said amount of money. Hence the case.
  2. 3.      The Magistrate examined the complainant on 10.11.2005 and issued summons against the accused-petitioner under Section 138 of the Negotiable Instruments Act, 1881 fixing the next date on 23.01.2006.
  3. 4.      The accused petitioner appeared and voluntarily surrendered before the Magistrate on 23.01.2006 and prayed for bail. After hearing the Magistrate enlarged accused petitioner on bail on 23.01.2006. Thereafter the case record was transferred to learned Metropolitan Sessions Judge, Dhaka by order dated 08.03.2006 for trail.
  4. 5.      The learned Metropolitan Sessions Judge, Dhaka received the case record and took cognizance against the accused petitioner on 15.06.2006 and transferred the case record to learned Metropolitan Assistant Sessions Judge, 5th Court Dhaka for disposal.
  5. 6.      Learned Assistant Metropolitan Sessions Judge, 5th Court, Dhaka received the case record on 18.06.2006 and fixed the next date on 22.08.2006 for charge hearing.
  6. 7.      The petitioner appeared before the learned Assistant Metropolitan Sessions Judge, 5th Court Dhaka on 22.08.2006 and filed an application under Section 265(c) of Code of Criminal procedure praying for discharge on the ground that the petition of complaint does not disclose any cause of action under clause (c) of proviso to Section 138 of the Negotiable Instruments Act 1881 and as such the charge is groundless and therefore the petitioner is entitled to  be discharged.
  7. 8.      After hearing upon  both sides, the learned Assistant Metropolitan Sessions Judge, Dhaka rejected the application for discharge by order dated 22.08.2006 and fixed the next date on 03.09.2006 for charge hearing.
  8. 9.      Being aggrieved  by and dissatisfied with the proceedings of the Metropolitan  Sessions No. 1494 of 2006 the petitioner moved  this application before this court and obtained Rule.
  9. 10.      Mr. Md. Bakir Uddin Bhuiyan, the learned Advocate for the petitioner  submits that  there being no assertion in the petition of complaint as to when the notice  for payment of money sent by the complainant was actually received by the accused and as such the countdown of 15 days has not yet been begun for a cause of action, the petition of complaint , in the instant  case and the proceedings suffer for patent illegality and thus on the face of the petition of complaint even if it is accepted   in its entirety, it does not constitute any offence or no offence shall be deemed to have been committed as alleged and as such it would be manifestly unjust to allow.
  10. 11.      He further submits that  under section141 of the Negotiable Instruments act, 1881 it has been provided that no court shall take cognizance of any offence punishable under section138 of the act except on a complaint in  writing and  such complaint is to be made within one month form the date on which the cause of  action arises under clause (c) of proviso to section 138 of the Negotiable Instruments Act, 1881 but in the instant case there is no cause of action and as such the cognizance taken by the learned Metropolitan Sessions Judge , Dhaka is on the face of it is unjust and as such the continuance of the proceedings of the instant  case is an abuse of the process of the court and therefore liable to be quashed.
  11. 12.      Mr.  Syed Mizanur Rahman the learned Advocate for the opposite party No.2, on the other  hand, submits that  the contention of the petitioner is  subject to prove; that impugned proceedings is legal and the complainant  categorically described the very arising out of cause of action having no ambiguity in it and therefore there is no legal flaws  in the  impugned proceedings and the learned Assistant Metropolitan  Sessions Judge, 5th court, Dhaka on appreciating the said legal aspect rightly framed charge. He further submits that there is no legal ground in the instant  Rule  by which this court can at all interfere with the impugned proceedings initiated and pending for trial and as such, the Rule is  liable to be discharged and stay be vacated.
  12. 13.      In order to appreciate the contention of the accused petitioner and the submission  made by the  learned Advocate for the opposite party No.2, let us now see  whether the complainant opposite party No.2  has filed the case before the learned  Metropolitan  Magistrate strictly complying with the provision of law envisaged under section  138 and 141 of the Negotiable Instruments Act and whether the proceedings under section 561A of the Code of Criminal  Procedure is liable to be quashed. Now let us see the provision of  section  138  of the Negotiable Instruments act which reads as follows:

“138. Dishonour of cheque for insufficiency, etc. of funds in the account –(1). Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account  is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to dis-honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be  punished with imprisonment for a term which may extend to one year, or with fine which may extend to  (thrice)  the amount of the cheque, or with both;

Provided that nothing contained in this section shall apply unless-

(a)    the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b)   The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in  writing, to the drawer of the cheque, within  fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c)    The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within (fifteen days) of the receipt of the said notice.

  1. 14.      On a careful analysis of section 138 of the Negotiable Instruments Act, it is seen that its main part creates an offence when a cheque is returned by the bank unpaid for any of the reasons mentioned therein. The significant fact , however, is that  the proviso lays down three conditions precedent to the applicability of the above section and, for that matter, creation of such offence and the conditions are: (i) the cheque should have  been presented  to the bank within six  months of its issue or within the period  of its validity whichever is earlier; (ii) payee should have made a demand for payment by registered notice after the cheque is returned unpaid; and  (iii) that the drawer should have failed to pay the amount within 15 days of the receipt of notice. It is only when all the above  three conditions are satisfied that a prosecution can be launched for the offence under section 138.
  2. 15.       Now let us see the provision of section 141 of the Negotiable Instruments Act  which runs as follows:

“141. Cognizance of offences– Notwithst-anding any thing contained in the Code  of criminal Procedure 1898.

(a) No court shall take cognizance  of any offence punishable under section 138  except upon a  complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) Such  complaint is made within one month of the date on which the cause of action arises under clause  (c) of the proviso to section 138.

(C) no court inferior to that of a court of sessions shall try any offence punishable under section 138.”

  1. 16.      From the plain reading of the above section it is manifest that a competent  court can take cognizance of a written complaint of an offence under section 138 if it is made within one month of the date on which the cause of action arises under clause ( c) of the proviso of section 138.

        (Emphasis supplied).

  1. 17.      From the above provisions, we find the following three different propositions which  have been supported by our apex court.

i)           a cheque can be presented for  encashment on any number of occasions within the period of  its validity and  its dishonour on every  occasion will give rise to a fresh’ Cause of action’ within the meaning of clause (b) of section 141 of the  Negotiable Instruments Act so as to entitle the payee to institute  prosecution under section 138 on the basis of the last cause of action;

ii)          A cheque can be presented for encashment on any number of occasions within the period of its validity but there can be only one cause of action under section 141(b)  arising from its last dishonour and

iii)         Only for the first dishonour and not subsequent dishonours can a prosecution under section 138 be instituted as per section 138 (c) read with section 141(b) envisages only one cause of action in respect  of one and the same cheque.

  1. 18.      Now the point for determination is (1) whether the petitioner filed the case satisfying the provisions of law and (II) whether taking cognizance of the offence in this case is in contravention of law and (III) whether framing of charge and the continuation of the case is legal.
  2. 19.      On the critical analysis of the facts and circumstances of the case, it  appears  that the complainant opposite party No. 2, Khalilur Rahman as per proviso (a) of sub-section (1) of section 138  has presented the cheque to the Bank with 6(six) months of its issuance or within the period of its validity. As per proviso (b) of subsection (1) of section 138, the complainant opposite party No.2 also made a demand for the payment of the said amount by giving registered notice, in writing, to the accused petitioner within 15 days after the cheque is returned unpaid. Thus the complainant opposite party No.2 has fulfilled two conditions out of above mentioned 3(three) conditions. The third condition is whether he has filed the case within 15(fifteen) days as per proviso (c)  sub-section  (1) of section 138 of Negotiable Instruments Act.
  3. 20.       Since the date of receipt of notice was not mentioned in the complaint petition and thus the cause of action of this case cannot be ascertained.
  4. 21.      On perusal of the record, it appears that the notice for demand of money was issued on 12.10.2005. It is alleged that said notice was not received by the accused petitioner. But the accused petitioner alleged that he did not receive the notice. The case of the opposite party No.2 is that  the legal notice  under section 138 (1) (b) of the Negotiable Instruments act  was issued  on 12.10.2005 through  registered post with AD; that it is presumed as per the provision of law that the said notice has been duly served upon the accused petitioner but the accused petitioner did not turn up to clear up the dues after getting notice as per the provision of law.
  5. 22.      The only contention of the accused petitioner is that no notice was served upon  him and thus no cause of action arose in the instant case and as such the proceedings of the  instant case is liable to be quashed.
  6. 23.      Since the notice was issued through registered post with AD and thus it is  deemed  to be served on and received by the accused petitioner, So it can be legally presumed  that the notice  has been  served properly as per article 17 of General Clauses Act. The accused petitioner no where in his entire  petition  mentioned that  he did not receive  the legal notice. There is nothing  in the four corners of section 138 or of section 141 of the Negotiable Instruments Act that for non mentioning of receiving date of the legal notice in the petition of complaint, the case will render illegal when all other ingredients in filling the case is very much available in the materials on record. We find support of  above view in the case of Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan reported in 60 DLR(AD)195.
  7. 24.      More so  the very correctness of serving  legal notice under section 138 (1)(B) of the act by the  opposite party No.2 and receiving so by the drawer of the cheque can only be  adjudicated in the trial and as such the proceeding can not be quashed  for factual aspect of  a case. Whatever the defence case might be, that cannot be the basis of quashing the proceedings initiated against the petitioner when it is proved that the alleged cheque has been issued by him and it was bounced from his Bank.
  8. 25.      In this connection we may profitably refers the decision in the case of Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan and another reported in 60 DLR (AD) 195 wherein their Lordships held “Since the date of receipt is a question of fact to be ascertained at the time of trial,  non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence.”
  9. 26.      In view of the decisions of our apex court, we are of the view that non disclosure of the date of receipt of notice under section 138 (1) (b) of the Negotiable Instruments Act is a question of fact which will be decided at the time of trial after taking evidence and thus non-disclosure of date of receipt of notice and consequently the failure to disclose the cause of action can not render the proceedings under section 561A of the Code of Criminal Procedure liable to be quashed.
  10. 27.      In this connection we may also profitably refer the decision in the case of Ali Akkas vs. Enayet Hossain and others reported in 17 BLD (AD) 44 wherein their lordship held” the settled principle of law is that to bring a cause within the purview of section 561A of the purpose for quashing a proceedings one following conditions must bee fulfilled.
    1. Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused;

    2. The State Vs. Milon alias Md. Milon and others (Syed Md. Ziaul Karim, J.)

      Where the institution and continuation of the proceeding amounts to an abuse of the process of the court;

  1.  Where there is a legal bar against the initiation or continuation of the proceeding;
  2. In a case where the allegations in the FIR  or the petition of complaint, even if taken at their face value   and accepted in their entirely, do not constitute the offence alleged; and
  3. The allegations against the accused although constituted an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.”
  4. 28.      In the light of the above decision and considering the facts and circumstances of the case, we are of the view that since there is no legal bar against the initiation and continuation of the proceedings and as such the proceedings do not amount to an abuse of the process of the court. We could safely presumed  that the proceedings shall not be quashed and the accused petitioner is not therefore entitled to get  relief as prayed for and as such the Rule should be discharged.
  5. 29.      In the result, the Rule is discharged and the proceedings in Metro. Sessions Case No. 1494 of 2006 under section 138 of the Negotiable Instruments Act which is now pending in the court of Metropolitan Assistant Sessions, Judge, 5th court, Dhaka should not be quashed.

        The order of stay granted earlier shall stand vacated.

        Let a copy of this judgment be sent to the learned Metropolitan Assistant Sessions Judge, 5th Court, Dhaka for compliance.

      Ed.

HIGH COURT DIVISION

(Criminal Appellate Jurisdiction)

Mr. Syed Md. Ziaul Karim, J.

And

Mr. A.N.M. Bashir Ullah, J.

Judgment

05-01-2012 and

08-01-2012

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 The State

Vs.

Milon alias Md. Milon, and others

…Condemned-Prisoners.

Milon alias Md. Milon and others

…Convict-Appellants.

Vs.

The State

…Respondent

Code of Criminal Procedure (V of 1898)

Sections 164, 342 and 364

Evidence Act  (I of 1872)

Sections 3 and 137

The confessing accused Milon at the time of recording confession did not raise any objection regarding its truth and voluntariness but at the time of examination under section 342 of the Code, he offered an explanation to the effect that the confession was extracted under coercion and torture and he made out a new story of torture, which are inconsistent with that of the evidence on record and no attention was drawn to the I. O. at the time of cross-examining him which was left out of consideration.                             … (61 and 62)

Code of Criminal Procedure (V of 1898)

Section 164

Evidence Act (I of 1872)

Section 24

The confessing accused implicated himself in commission of rape and murdering and his confession was proved not only as voluntary and true but also inculpatory in nature and as


Death Reference No. 43 of 2006 with Criminal Appeal No. 2185 of 2006 with Jail Appeal Nos. 407 of 2006 to 412 of 2006.

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