S.M. Redwan Vs. Md. Rezaul Islam

Appellate Division Cases

(Criminal)

PARTIES

S.M. Redwan………………………………………………..………. Petitioner

-vs-

Md. Rezaul Islam …………………………………………………… Respondent

JUDGES

Md. Ruhul Amin, J.

M.M. Ruhul Amin, J

Md.Tafazzul Islam,J

Date of Order

24 November 2004

The Negotiable Instruments Act(XXVI of 1881), Section 138.

“Payment stopped by the drawer” does not come within the scope of section 138 of the Negotiable Instruments Act, 1881 (2)

‘We are constrained to hold the view that the cheque which was returned with the remarks ‘ payment stopped by the borrower’ does not and can not anyway be interpreted that the cheque was returned un’ cashed for insufficiency of fund and there is no ambiguity in this section to interpreter it otherwise’ (3)

ADVOCATES

Md. Rafiqul Islam, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record For the Petitioner .Not represented Respondent

ORDER

1. Md. Tafazzul Islam J:- By this criminal petition for leave to appeal the petitioner seeks leave to appeal against the judgment and order dated 9.2.2003 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 2788 of 2000 quashing the proceedings which was started against the respondent Nos.l and 2 in G.R. Case No. 4690 of 1999 on an application under section 138 of the Negotiable Instrument Act, 1881.

2. The petitioner filed the above C.R. Case No. 4690 of 1999 alleging, inter alia, that the accused respondent Nos. 1 and 2, claiming themselves to be the owners-in-possession of

2.14*2 acres of land of C.S. Khatian No. 229 and S.A. Khatian No. 439 appertaining to C.S. and S.A. Dag No. 134 within P.S. Gulshan, District Dhaka proposed to sell the same to the petitoner and proforma respondent No. 4 at a consideration of Tk. 29,25,000/- and then they accepting an advance of Tk. 10,00,000/executed a Bainanama in favour of the petitioner and proforma respondent No. 4 on 21.9.1998 with an undertaking to execute the regular sale deed on receipt of the balance amount of the consideration money but subsequently, after investigation, it was found that the aforesaid land does not belong to the respondent Nos. 1 and 2 and they have no right title and possession thereon and the same belongs to other persons. In such circumstances the petitioner and the proforma respondent Nos. 4 requested the respondent Nos. 1 and 2 to refund the amount of Tk. 10,00.000/- which was taken by them as advance but they took dilatory tactics and however later on respondent No. 1 issued 3 (three) cheques including the instant cheque No. NCCB-314709 dated 15.5.1999 for an amount of Tk.3,00,000/- in the name of the petitoner but after the above cheque was produced to the concerned bank on 21.9.1999 for encasement, it being dishonored was returned on 21.9.1999 with the remark ‘Payment stopped by the drawer’ Thereafter the petitoner approached the accused respondent Nos. 1 and 2 and asked him to refund the amount of Tk. 300,000/- but he refused to refund the above amount which showed that the initial intention of the accused respondent Nos. 1 and 2 were to cheat and deceive the petitioner and, finding no other way the petitioner filed the above C.R. Case No. 4690 of 1999 after sending due notice and then the learned Chief Metropolitan Magistrate, Dhaka, after taking cognizance, issued summons upon the respondent No. 1 vide order dated 15.11.1999 fixing next date on 15.12.1999 for further order and at that stage Respondent No. 1 moved the High Court Division under section 561A of the Code of Criminal Procedure for quashing and obtained the Rule on 21.5.1999 and also got the further proceedings of the C.R. Case No. 4690 of 1999 stayed. The petitioner opposed the Rule contending inter alia that the respondent nos. 1 and 2 on false representation and with a view to cheat and deceive the petitioner and proforma respondent No. 4 made the aforesaid Bainanama and subsequently issued the instant cheque with dishonest and fraudulent intention to cheat and to misappropriate the amount. The High Court Division, after hearing, made the Rule absolute along with the finding that the word, “payment stopped by the drawer” does not come within the scope of section 138 of the Negotiable Instruments Act, 1881.

3. The learned counsel appearing for the petitioner submits that the mode of obtaining and procurement of cheque not being the requirement of law, the High Court Division acted illegally in making the Rule absolute holding that ‘we are constrained to hold the view that the cheque which was returned with the remarks ‘ payment stopped by the borrower’ ‘does not and can not anyway be interpreted that the cheque was returned un-cashed for insufficiency of fund and there is no ambiguity in this section to interpreter it otherwise1 in view of the legal position that the main issue is the dishonour of a cheque by the bank due to fraudulent action of the drawer and if the view taken by the High Court Division that payment stopped by the borrower does not come within the scope of section 138 of the Negotiable Instruments Act, is allowed to hold the field the defaulters will resort to that mode of operation after issuing the cheque to serve their designed purpose.

4. The above submissions made by the learned counsel of the petitioner merit consideration.

5. Leave is granted.

6. Preparation of paper book is dispensed with as prayed for.

7. The Petitioner is permitted to add additional grounds.

Source: III ADC (2006) 756

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