Appellate Division Cases
(Criminal)
PARTIES
Munshi Md. Rashed Kamal ……………………Appellant
-VS-
Abdus Salam and another……………………..Respondents
JUSTICE
Syed J.R. Mudassir Husain CJ
M.A. Aziz J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 10th January 2005
The Negotiable Instruments Act, 1881, Section 138.
The Code of Criminal Procedure, Section 561A.
Nizam Uddin Mahmood Vs. Abdul Hamid Bhuiyan and another in 9 MLR (AD) 299.
Mr. M. Shamsul Alam in IX MLR (AD) 299.
That though the appellant presented the cheque on four dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the required notice on 06.11.2000, well within statutory period and as such filing of the instant complaint on 11.12.2000 cannot be regarded as illegal …………………(13)
It is clear that the High Court Division took a contrary view on an erroneous interpretation of the law and quashed the proceeding. The impugned judgment is bad in law and as such is not sustainable …………………(14)
Criminal Appeal No. 17 of 2003 (From the judgment and order dated 10.03.2002 passed by the High Court Division in Criminal Miscellaneous Case No. 3481 of 2001)
M. Shamsul Alam, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record……………….. For the Appellant
Abdur Razaque Khan, Additional Attorney General, (Abdur Rouf, Deputy Attorney
General, with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record…….. For
Respondent No.2
JUDGMENT
1. Amirul Kabir Chowdhury J. This appeal by leave at the instance of the complainant
Munshi Md. Rashed Kamal has been preferred challenging the judgment and order dated 10.03.2002 passed by a Division Bench of the High Court Division in Criminal
Miscellaneous Case No. 3481 of 2001 making the rule absolute thereby quashing the proceeding of C.R. Case No. 4321 (A) of 2000 pending in the Court of learned Chief
Metropolitan Magistrate, Dhaka under Section 138 of the Negotiable Instruments
Act, 1881.
2. The facts, in brief, are that the appellant filed a petition of complaint on 11.12.2000 in
the Court of the learned Chief Metropolitan Magistrate, Dhaka stating, inter alia, that the
respondent No.l Abdus Salam took loan of Tk. 1 lac from the appellant for three months
but he did not refund the money on time and, therefore, the appellant repeatedly requested him for reimbursement of the money and accordingly the respondent No.l on
18.06.2000 issued a cheque of Tk. 10 lacs and the same was deposited in the bank which has been returned to the appellant on 20.08.2000 due to insufficient fund and the cheque again was deposited on 31.08.2000 and 01.10.2000 repeatedly which again being dishonoured was returned to the appellant on 03.09.2000 and 03.10.2000 respectively. Thereafter the appellant approached the respondent No. 1 and on his advice he again presented the cheque on 23.10.2000 but it was returned to the appellant being bounced on 26.10.2000 and, therefore, the appellant served notice upon the respondent on 06.11.2000 and it proved invain and, therefore, he lodged the petition of complaint before the learned
Magistrate on 11.12.2000 and the learned Magistrate after recording his statement issued warrant of arrest against the respondent under Section 138 of the Negotiable Instruments Act and that the respondent appeared before the court and was released on bail. During trial charge was framed against the respondent under Section 138 of the Negotiable Instruments Act.
3. The respondent moved the High Court Division for quashing the proceeding under
Section 561A of the Code of Criminal Procedure. The High Court Division after hearing the parties passed the impugned judgment and order quashing the proceeding and hence is this appeal.
4. In support of the appeal, Mr. M. Shamsul Alam learned Senior Advocate submits, inter
alia, that the High Court Division committed error of law in not observing that the petition of complaint disclosed the alleged offence and that there is no abuse of process in the proceeding.
5. He further submits that the High Court Division committed error in holding that the
notice was issued upon the respondent after the expiry of 15 days as required under the
provision of law.
6. In support of the submissions Mr. M. Shamsul Alam learned Senior Advocate refers to the decision in the case of Nizam Uddin Mahmood Vs. Abdul Hamid Bhuiyan and another in 9 MLR (AD) 299.
7. Mr. Abdur Razaque Khan, learned Additional Attorney General appearing on behalf of the state, the respondent No.l attempted to support impugned judgment and order. He submitted that the cause of action should be presumed to have arisen with the service of notice after a chqeue was dishonoured for the first time and if a cheque was dishonoured repeatedly causes of action would arise on the issuance of notice every time. Regarding the observation of the High Court Division that the notice in question has been served beyond statutory period, the learned Additional Attorney General in the facts and circumstance of the case finds it difficult to support such observation.
8. We have considered the submissions made at the Bar and perused the materials on record. To examine the submissions let us quote Section 138 of the Negotiable instruments Act which runs as follows: 138. Dishonour of cheque for insufficiency, etc. of funds in the account -[I]. 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 the account is returned by the bank unpaid, either because of the amount of
money standing to the credit of the account is insufficient to 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 falls 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 cheque, within fifteen days of the receipt of the said notice.
9. On perusal of the aforesaid provision it appears that the cheque is required to be presented to the bank within 6 months from which it is drawn. The holder of the cheque,
therefore, is at liberty to present the cheque on more than one occasion till it is honoured
/enchased within 6 months from the date of drawing. The holder of the cheque is, therefore, not obliged to issue notice making demand for the payment of the amount within 15 days of the receipt of the information by him from the bank regarding the return of the cheque on the very first occasion since he may present the cheque at times more than once within 6 months.
10. He cannot be debarred from issuing notice to the drawer of the cheque on receipt of
information of dishonour of the cheque on the second or last occasion as the case may be.
11. It may be mentioned that the above view has been iterated in the decision cited by Mr. M. Shamsul Alam in IX MLR (AD) 299.
12. The High Court Division quashing the proceeding observed: “However it would not be proper to discard instantly the above argument made by the fearned Advocate of the complainant opposite party as to the fact that the accused petitioner used to persuade
the opposite party No.l to deposit the cheque in question, whenever he notice (sic) regarding return of the cheque as unpaid. And on several dates, the complaint opposite party deposited the same having been persuaded by the accused petitioner but the facts remain that no positive result reached to the opposite party. Although at this stage the argument made by the learned Advocate has got no leg to sand in view of clause (a) to section 138 where in it is clearly mentioned that “Six months from the date on which
it is drawn or within the period of its validity” whichever is earlier. In the instant case the cheque in question was dishonoured on 20.08.2000 and the cause of action arose on the same date i.e. 20.08.2000, none the less the notice was served on 06.11.2000 upon the accused petitioner after expiry of statutory period as required under clause (b) to section
138 of the Act and as such the argument made by the learned Advocate of the
complainant opposite party does not attract Clause (a) to section 138 of the Act. And in this ambience (sic) of circumstances, if those allegations are taken to be true even then that will not be conducive for the opposite party No.l in view of Clause (b) to section 138 of the Act and Clause (b) to section 141 of the Negotiable Instruments Act.”
13. We are, therefore, of the view that though the appellant presented the cheque on four
dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the
required notice on 06.11.2000, well within statutory period and as such filing of the
instant complaint on 11.12.2000 cannot be regarded as illegal.
14. It is clear that the High Court Division took a contrary view on an erroneous interpretation of the law and quashed the proceeding. The impugned judgment is bad in law and as such is not sustainable.
15. On the reasons stated above we find substance in this appeal. The appeal is, therefore,
allowed. The impugned judgment and order dated 10.3.2002 of the High Court Division is set aside.
Ed.
Source: IV ADC (2007), 357