Appellate Division Cases
S. M. Emdadul Hossain (Bulbul)……………………….. Petitioner
Mr. Jinnur Hosain and another ………………………….Respondent
Syed J. R. Mudassir Husain CJ
Mohammad Fazlul Karim J
M. A. Aziz J
Amirul Kabir Chowdhury J
Date of Judgment
8th August 2004
The Negotiable Instrument Act ( XXVI of 1981), Section 138, 141 (b).
The Code of Criminal Procedure (V of 1898), Section 439A, 241A, 561A.
The complaint case having been filed in contravention of provision of Sections 138 and 141 (b) of the Negotiable Instrument Act as the same was then in Act 19 of 1994 the cause of action being before amen dement of the law made on 6th July 2000 (Act XVII of 2000) the complaint petition is liable to be quashed (4)
Criminal Petition For Leave to Appeal No. 177 of 2003 (From the Judgment and Order dated 26.07.2003 passed by the High Court Division in Criminal Miscellaneous Case No. 8491 of 2001)
Mansurul Hoq Chowdhury, Advocate instructed by Mrs. Sufia Khatun, Advocateon-Record. For the Petitioner.Shorful Islam Khan, Advocate, instructed bv Md. Aftab Hossain, Advocate-on-Record For Respondent No. 1 .Not represented Respondent No. 2
1. Amirul Kabir Chowdhury J: Accused S. M. Emdadul Hossain (Bulbul) seeks leave to appeal against the judgment and order dated 26.07.2003 passed by the High Court Division in Criminal Miscellaneous Case No. 8491 of 2001 discharging the rule.
2. The facts, in brief, leading to the leave petition are that the respondent No. 1filed a petition of complaint before the learned Chief Metropolitan Magistrate, Dhaka alleging commission of offence under section 138 of the Negptoable Instrument Act (as amended) in short the Act, stating inter alia, that a cheque dated 09.02.1999 for a sum of TK. 25,00,000/was issued by the accused petitioner which being presented to the bank had been returned to the respondent No. 1 on 10.05.1999, 31.03.1999 and 20.06.1999 with the remark “not arranged for and insufficient fund” and, therefore, notice was served upon the accused but to no effect and hence the complaint petition was filed on 06.07.1999 and complainant being examined on oath, the learned Magistrate issued summons against the petitioner under Section 138 of the Act and the accused petitioner has been released on bail. At the time of hearing as to framing of charge the petitioner filed an application to discharge him under Section 241A of the Code of Criminal Procedure which being rejected, charge has been framed against him and he pleaded not guilty to the charge. Being aggrieved he moved the learned Sessions Judge under Section 439A of the Code of Criminal Procedure which has been rejected. Thereafter he filed an application before the High Court Division under Sectio 561A of the Code of Criminal Procedure and the High Court Division by the impugned judgment and order discharged
the rule and hence is this petition.
3. In support of the petition, Mr. Mansurul Hoq Chowdhury, learned Advocate submits, inter alia, that the cause of action, if any, arose on 09.02.1999 the date of alleged issuance of the cheque in question or on 10.05.1999, 31.05.1999 and 22.06.1999, the dates on which the cheque is said to have been bounced but the law under which the petitioner has been prosecuted came into operation on 06.07.1999 and as such the lodgment of the complaint and taking cognizance of the offence and framing charge against the petitioner and the trial itself are all illegal and hence the proceeding is liable to be quashed.
4. Being permitted the learned Advocate refers to the additional ground as follows:”The complaint case having been filed in contravention of provision of Sections 138 and 141 (b) of the Negotiable Instrument Act as the same was then in Act 19 of 1994 the cause of action being before amen dement of the law made on 6th July 2000 (Act XVII of 2000) the complaint petition is liable to be quashed.” Mr. Shorful Islam Khan, learned Advocate appearing for the respondent opposes the petition . The submissions made on behalf of the petitioner merit consideration. Leave is, therefore, granted. Preparation of the paper book is dispensed with as prayed for. Operation of the judgment and order dated 26.07.2003 passed by the High Court Division in Criminal Miscellaneous Case No. 8491 of 2001 is stayed for a period of 6 (six) months from dated.
Source: III ADC (2006) 583