Re: Legal opinion regarding Criminal Miscellaneous Case No. 11414 of 2005 filed in the Hon’ble High Court. A/C. Mr. X.
We refer to your letter dated 18.12.2006 on the above subject.
We have perused the documents/papers referred to us. We understand that on dishonour of the cheque for ‘insufficient fund’, BANK 1 filed Petition Case No. 1729 of 2003 against the Mr. X (the “Borrower/accused) under section 138 of the Negotiable Instruments Act, 1881. Subsequently the said complaint Case was dismissed on 18.09.2003 due to non-appearance of the complainant. Thereafter, BANK 1 again filed Complaint Case No. 3058 of 2003 on 27.09.2003 before the Chief Metropolitan Magistrate Court (the “CMM”), Dhaka against the Borrower/accused and the CMM, after perusal of the record of the Complaint Case No. 1729 of 2003 vide its order dated 04.10.2003 took cognizance of the offence under section 138 of the Negotiable Instrument Act, 1881. Finally, the learned Metropolitan Magistrate, 20th Court, Dhaka vide its judgment dated 20.06.2005 passed in Complaint Case No. 3058 of 2003 sentenced the Borrower/accused with imprisonment for a term of 1 (one) year and imposed fine for Tk. 6,00,000.00 (Taka six lac) only with direction upon concerned Collector to collect the fine and to pay the face value of the cheque i.e. Tk. 5,17,000.00 (Taka five lac seventeen thousand) only to BANK 1.
Now, the BANK 1 received a Rule from the Hon’ble High Court Division of the Supreme Court of Bangladesh on 05.12.2006 and upon perusal of the said Rule it appears that the Borrower/accused filed Criminal Miscellaneous Case No. 11414 of 2005 against BANK 1 and another under section 561A of the Code of Civil Procedure for quashing the proceedings of the Complaint Case No. 3058 of 2003. It also appears that after hearing, the Hon’ble High Court Division comprising of Mr. Justice A and Mr. Justice B vide order dated 20.08.2005 issued Rule calling upon the opposite parties to show cause Bas to why the proceedings in Complaint Case No. 3508 of 2003 should not be quashed. At the time of issuing the Rule, the Hon’ble High Court Division called for the record and stayed all further proceedings of the said Complaint Case. In such situation the matter has been referred to us with a request to advise as to the next course of action that BANK 1 should take in this matter.
Our opinion is follows:
It appears that upon filing Criminal Miscellaneous Case No. ……………. under section 561A of the Code of Civil Procedure by the accused, the Hon’ble High Court Division vide order dated 20.08.2005 issued Rule and stayed all further proceeding of Complaint Case No. 3058 of 2003. In such situation, it is advisable that BANK 1 should appear in the Criminal Miscellaneous Case No. …………………. through its lawyer and take necessary steps for discharging the Rule and vacating the said order of stay. In the Criminal Miscellaneous Case, BANK 1 may raise the issue that before passing the order of stay of further proceeding of the Complaint Case by the High Court Division on 20.08.2005, the learned Metropolitan Magistrate, 20th Court, Dhaka passed its judgment in the Complaint Case No. …………………… on 20.06.2005 against the Borrower/accused.
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