Case No: Criminal Revision No. 1025 of 2010
Judge: Siddiqur Rahman Miah,
Court: High Court Division,,
Advocate: Mr. Habibur Rahman,Mr. M. A. Mazid,,
Citation: 1 LNJ (2012) 341
Case Year: 2012
Appellant: AKM Fayekuzzaman
Respondent: The State and another
Subject: Jurisdiction of a Court,
Delivery Date: 2010-12-09
(Criminal Revisional Jurisdiction)
|Siddiqur Rahman Miah, J.
Md. Abdul Hye, J.
VSThe State and another
… Opposite Parties
Sections 265C and 439
Negotiable Instruments Act (XXVI of 1881)
There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is mainta-inable against the order of framing charge against the accused. ...(34)
Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123; Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150; Firoj Khan vs. Captain Golam Nabi (1966) 18 DLR (SC)289; Abdur Rashid Khondaker vs. Chandu Master (1964) 16 DLR (SC)505 ref.
Mr. Delwar Hossain Lasker
Ms. Salma Rahman, AAG
Criminal Revision No. 1025 of 2010
1. This Rule was issued on an application under section 439 read with section 435 of the Code of Criminal Procedure filed by the informant petitioner against the order dated 09.02.2009 for framing charge against the accused petitioner which was passed by the learned Sessions Judge, Rangpur in Sessions case No. 383 of 2008 arising out of CR case No. 300 of 2008 under section 138 of the Negotiable Instruments Act, 1881 now pending before the Metropolitan Sessions Judge, Dhaka as Metro. Sessions case No. 858 of 2010.
2. Prosecution case, in short is that one Rejena Begum, proprietor of Nepa Enterprise, filed CR Case No. 300 of 2008 against AKM Fayekuz-zaman, proprietor of M/S. Khandoker Business International stating, inter alia, that the complai-nant is a contractor and her husband Md. Eakub Ali is a 1st Class Government officer who is acquainted with the accused who is a reputed 1st class contractor; that the accused approached to the complainant that he got five work orders whose contract value stands at Taka 13,17,36,515.60; that he needs some money for the completion of those works; that the accused expected to earn taka about more than two crores out of those works and he would pay complainant half of the profit if she gave him some money and that the complain-ant as per the proposal of the accused gave loan of Taka 2,25,00000/= within 23.09.2006 to 21.02.2008.
3. It is further stated that the complainant, later on, pressed the accused to repay his loan and accordingly the accused issued a cheque of taka 1,50,00,000.00 being No. NCCB/C 5710308 from his current account No. 01016899 of NCC Bank Ltd. Rangpur; that later on when the complainant again pressed the accused to repay his loan with profit, then the accused again issued a cheque of Taka 75,00,000/= ; that the complainant placed the cheque of taka 1,50,00,000/= in the relevant bank for encashment but the cheque was dishonored; that the complainant approached to accused for immediate repayment of loan but he failed for which the complainant issued legal notice on 03.06.2008 to the accused through his lawyer which was received by the office of the accused on 08.06.2008 but the accused did not take any step to repay the loan; that in reply to the legal notice the accused stated that there was a written contract between them, which is not correct and that when the complainant presumed that the accused would not repay the loan, then she was compelled to file the case against the accused petitioner under section 138 of the Negotiable Instruments Act, 1881.
4. Thereafter the accused petitioner voluntarily surrendered before the Chief Judicial Magistrate and got bail. Subsequently the case was transferred before the Sessions Judge, Rangpur for trial and the accused petitioner got bail by the learned Sessions Judge, Rangpur and on 09.02.2009 was fixed for framing of charge. On behalf of the accused petitioner, an application under section 265C was filed which was rejected by an order dated 09.02.2009. Later on, by the order of High Court Division the case transferred to Metropo-litan Sessions Judge, Dhaka and now the case is pending before the Metropolitan Sessions Judge, Dhaka and last date of hearing was on 21.04.2010.
5. The defence case as it appears from the record is that the accused petitioner is a bonafide businessman and he got some work orders for erecting some buildings at Rangpur and at that time, husband of the complainant i.e. Yeakub Ali was the PIO (Project Implementation Officer) of the Rangpur who proposed to the accused petitioner that his wife had a business firm and she is able to discharge the work and there will be no problem if the works are given to the complainant. On good faith, the accused petitioner on the basis of a deed of contract supplied the works to the complainant along with sufficient cash and 10(ten) blank cheques of NCC Bank Rangpur being Nos. 5710301 to 5710310 were given to the complainant. Out of the 10 (ten) cheques, the complainant used 7 (seven) cheques i.e. cheque Nos. 5710301 to 5710307 and drew Taka 57,04,000/= and for getting back his blank cheques, the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques. Simultaneously the accused wrote a letter to the Bank to stop payment because the 10% of the work was not done by the complainant but amount of more bills was already withdrawn by her.
6. In view of the above facts and circumstances of the case, the points for determination is whether the case of the complainant under section 138 of the Negotiable Instruments act is at all maintain-able and whether the framing of charge dated 09.02.2009 against the accused petitioner is at all tenable in law.
7. There is no denying of the fact that the complainant, Rejina Begum, proprietor of Nepa Enterprise and the accused Petitioner AKM Fayekuzzaman, proprietor of M/S. Khondaker Business International business man and women and the husband of the complainant, Md. Yakub Ali, was PIO ( Project Implementation Officer ) of Rangpur area and there was acquaintance between the husband of the complainant and the accused petitioner.
8. Mr. M A Mazid, the learned Advocate of the opposite party No. 2 submits that the accused took loan of taka 2,25,00,000/= on different dates starting from 23.09.2006 to 21.02.2008 giving her assurance to pay her 50% profit of schedule work and on the demand and pressure of the complainant the accused issued a cheque of Taka 1,50,00,000/= from his current account of NCC Bank Ltd. Rangpur; that the complainant requested the accused to repay the loan but he failed to repay the loan; that complainant issued legal notice through his lawyer and in stead of getting the notice, the accused failed to repay the loan for which she filed a case under section 138 of the Negotiable Instruments Act and that matter has been decided by the High Court Division. He further submits that the charge framed against the accused petitioner being legal will be maintained and thus the application under section 439 of the Code of Criminal Procedure are liable to be discharged.
9. Mr. Zahirul Haque Zahir, Deputy Attorney General along with Mrs. Salma Rahman, Assistant Attorney General for the State has adopted the submission of the learned Advocate for the complainant opposite party No. 2.
10. Mr. Habibur Rahman with Mr. Delwar Hossain the learned Advocate for the petitioner submits that the charge against the accused petitioner is not at all maintainable under section 138 of the Negotiable Instruments Act as there is a Civil contract between the complainant opposite party and the accused petitioner in the following terms:
২। ২য় পক্ষ এই চুক্তি পত্র অনুযায়ী বর্ণিত কাজ ২টি সম্পন্ন করিতে যাবতীয় বিনিয়োগ করিবেন এবং কর্তৃপক্ষের সিদ্ধান্ত অনুযায়ী কাজটি যথারীতি নিজ দায়িত্বে সম্পন্ন করিবেন। এই ব্যাপারে ১ম পক্ষের কোন দায় দায়িত্ব রহিল না। সংশিস্নষ্ট কাজরে যাবতীয় বিল এনসিসি ব্যংক লিঃ, রংপুর শাখায় ১ম পক্ষের নামে চলতি হিসাব নম্বর ০১০১৬৮৯৯ এর চেক নম্বর ৫৭১০৩০১-১০ মোট ১০টি পাতা ১ম পক্ষ স্বাক্ষর করিয়া ২য় পক্ষকে প্রদান করিলাম। যাহা দ্বরা তিনি শুধু মাত্র উপরোক্ত কার্যাদেশ বাবদ বিলের সমুদয় অর্থ ব্যাংক হইতে উত্তোলন করিয়া লইতে পারিবেন। ইহাতে ১ম পক্ষের কোন ওজর আপত্তি আইনগত ভাবে অগ্রাহ্য হইবে। ২য় পক্ষ এই চেকান্য কোন কাজে ব্যবহৃত করিতে পারিবে না।
৩। উপরোক্ত ঠিকাদারী কাজ ২টি ব্যায় ও লভ্যাংশ বাবদ মোট ১৪,০০,০০০ চৌদ্দ লক্ষ) টাকা ২য় পক্ষ ১ম পক্ষকে প্রদান করিবেন। তার মধ্যে অদ্য ২৬/০৯/২০০৬&ং তারিখে ২,৫০,০০০ (দুই লক্ষ পঞ্চাশ হাজার) টাকা নগদে পরিশোধ সহ বাকী টাকা আগামী অল্প সময়ের মধ্যে ২য় পক্ষ ১ম পক্ষকে পরিশোধ করিবেন।"
11. He further submits that on good faith the accused petitioner on the basis of contract supplied the works to the complainant along with sufficient cash and 10 (ten) blank cheques of NCC Bank Ltd. Rangpur being 5710301 to 5710310; that out of the 10 (ten) cheques the complainant used 7 (seven) cheques i.e. cheque Nos.5710301 to 5710307 and withdrew taka 57,04,000/= from the relevant account of the accused petitioner and the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques and simultaneously the accused wrote a letter to the Bank concerned to stop payment in the case filed under section 138 of the Negotiable Instruments Act because the 10% of the work was not done by the complainant but more amount of bill was drawn.
12. He further submits that the accused petitioner has filed the complainant petition being No. 3346 of 2008 under section 406/420/109 of the Penal Code by annexure–‘F’. The learned Chief Metropolitan Magistrate forwarded the petition to O.C., Ramna PS for enquiry and report. Officer-in-charge, Ramna endorsed the matter to SI Mr. Aksed, who enquired into the matter submitted enquiry report marked annexure-‘D’ stating "ঘটনার ব্যাপারে জিজ্ঞাসাবাদ করি এবং বিষয়টি গোপনে ও প্রকাশ্যে জিজ্ঞাসাবাদ করি। আমার সঠিক তদন্ত মতে, প্রদত্ত স্বাক্ষ প্রমান, বিভিন্ন ডকুমেন্ট ইত্যাদিতে বাদীর আনীত দঃ বিঃ ৪০৬/৪২০/১০৯ ধারার অভিযোগ প্রথমিকভাবে প্রমানিত হইয়াছে।"
13. On the finding of the report submitted by SI Akshed, Metropolitan Magistrate, Ms. Sayeda Minhajum Munir without taking cognizance of the case against accused Yukub Ali and Rejina Begum discharged them relating to Ramna PS Case No. 45(7)08 and GR case No.382 of 2008 under section 420/406/109 of the Penal Code against which accused petitioner AKM Fayekuzzaman filed Naraji Petition being Metropolitan Criminal Revision case No.92 of 2009 which was transferred to the learned Additional Metropolitan Sessions Judge, Dhaka for hearing who after detained discussion held that learned Metropo-litan Magistrate committed illegality in not taking cognizance of the case on the basis of police report dated 05.07.1008 filed by SI Aksed and illegally discharged the accused Yeakub Ali and Rejina Begum from charge and consequently he allowed the Revisional application which stoutly upheld that contention of the present accused petitioner A.K.M. Fayekuzzaman to the effect that the accused petitioner did not take loan from the complainant opposite party Rejina Begum rather the accused petitioner gave 10 (ten) blank cheques being No.5710301 to 5710310 out of which the complainant opposite party Rejina Begum used cheque Nos. 5710301 to 5710307 and withdrew Tk. 57,04,000/= completing only 10% of the work violating the terms of contract dated 13.09.2006 between the parties . This fact clearly shows that the complainant opposite party Rejina Begum violating the terms of the contract illegally and fraudulently had written the huge amount of Taka 1,50,00,000 on the blank cheque and filed the case under section 138 of the Negotiable Instrum-ents act for illegal gain. This fraudulent conduct of the complainant opposite party Rejina Begum cannot be encouraged allowing to proceed her case under section 138 of the Negotiable Instruments Act. The Negotiable Instruments Act was enacted for the holy purpose relating to promissory notes, bill of exchange and cheques. But this law has not been enacted for materializing such fraudulent cheques. The above facts clearly proves that the complainant opposite party Rejina Begum has illegally taken the shelter of this law like Negotiable Instruments Act to materialize her illegal gain. Record shows that the complainant opposite party Rejina Begum violating the terms of contract illegally withdrew Tk. 57,04,000/= using seven cheque Nos.5710301 to 5710307 and moreover she fraudulently and illegally attempted to snatch away Taka 1,50,00,000/= from the accused petitioner A.K.M. Fayekuzzaman using blank cheque No.5710308 misusing the holy purpose of the Negotiable Instruments Act. Negotiable Instruments Act is a very hash law wherein it is to be seen if whether cheque is dish-onoured within stipulated time whether legal notice has been served in time, and whether case was filed within specific time, then there is every possibility of being convicted with heavy fine. In the instant case, when the basic document like cheque is fraudulent there is no scope to see other factors. Because fraud vitiates everything Negotiable Instruments Act cannot be allowed to use for fraudulent purpose and for the illegal gain of the complainant opposite party Rejina Begum. To get relief under this law, the complainant opposite party Rejina Begum has to come to the court with clean hand. The contract between the accused petitioner A.K.M. Fayekuzzaman and complainant opposite party Rejina Begum is civil in nature. She may get relief on the basis of the contract. The contract between parties is a secret document. No one can go beyond the contract. In the instant case, the whole thing is to be settled on the basis of contract which the parties solemnly signed. The complainant opposite party Rejina Begum by passing the contract which she signed can not take the shelter of fraud and her fraudulent cheque which she manufactured illegally using the blank cheque which accused petitioner gave her in good faith to draw the amount of bill after completion of work but the complainant opposite party Rejina adopted illegal means under grab of Negotiable Instruments Act to get the huge amount from the accused petitioner AKM Fayekuzzaman in a easy way fraudulent converting the blank cheque.
14. Mr. Habibur Rahman, the learned Advocate for the accused petitioner A.K.M. Fayekuzzaman in reply to the question of Settlement of the matter of section 138 of the Negotiable Instruments Act by the High court Division presided by Mr. Afzal Hossain Ahmed, submits that commitment of fraud on the blank cheque by the complainant Rejina Begum has surely escaped the notice of the learned Judge, otherwise the matter was not decided in such a mechanical way. He further stoutly submits that fraud always vitiates everything and that the present forum is different wherein this court can decide everything on the basis of the facts of the case. We find substance in the submission of the learned Advocate for the petitioner.
15. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur under section 265C of the Code of Criminal Procedure for discharging him from the charge as the complainant opposite party fraudule-ntly converted the blank cheque into the alleged cheque.
16. Now let us see whether the accused petitioner may get any relief under section 265C of the Code of Criminal Procedure. Section 265C runs thus “265C – Discharge. If upon consider-ation of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.”
17. The section has made a beneficent provision to save the accused from planned harassment which is a necessary concomitant of a protracted criminal trial. The object of section 265C of the Code of Criminal Procedure is to inquire into the materials on record for prima facie satisfaction of the court as to whether the accused should be discharged or proceeded against so that innocent persons may not be harassed on false and frivolous allegations. If on the other hand, if the court finds that there is ground for presuming that the accused has committed an offence it shall frame necessary charges against him under section 265D of the Code. Even if now cases are sent to the court of Sessions upon a charge sheet or otherwise under section 265C of the Code of Criminal Procedure it is the duty of the court of Sessions to discharge those accused against whom it appears to the court from the record that there is no ground for proceeding after recording its reasons upon a consideration of the materials on record and after hearing both the parties so that frivolous cases and cases of no evidence do not occupy the time of the Sessions Court and innocent persons are not harassed unnecessarily by being put to the trouble and expense of undergoing a sessions trial. We find support of the above view in the case reported in 11 DLR (SC)394.
18. Trial court may discharge accused without framing charge if material on record is not sufficient. If before framing the charge, the Sessions court considers that there is no sufficient ground for proceeding against the accused, then it shall discharge the accused and record the reason for so doing under section 265C Cr.P.C.
19. The legislature has enacted section 265C apparently to protect the accused from facing the agony of futile and useless trial when the statements of the complainant and evidence available on record do not make out any prima facie case against the accused. Just as the accused is to be presumed innocent till he is proved to be guilty similarly the prosecution or the person wronged can not be throttled by the court arbitrarily and capriciously and must be given due opportunity to prove his case against the alleged wrong doer if on initial scrutiny is found that his allegation does disclose the commission of a criminal offence against an accused.
20. Under section 265C Cr.P.C. it is duty of the court of sessions upon consideration of the materials on record and after hearing the parties, to discharge those accused persons against whom it appears to the court that there is no ground for proceeding so that frivolous cases and cases of no evidence do not occupy the time of the court and innocent persons are subjected to the rigorous and expenses of a full scale trial.
21. The Role of High Court Division is to see whether thing are done rightly. High Court Division by its inherent jurisdiction can impart justice and can also eliminate injustice. This Division is empowered to see whether the charge against the accused petitioner has framed rightly or not under section 439 of the Code of Criminal Procedure .
22. The revisional powers of the High court vested in it by section 439 read with section 435 do not create any right in the litigant, but only conserve the power of the High court to see that justice is done in accordance with the recognized rules of criminal jurisdiction and that subordinate courts do not exceed their jurisdiction or abuse their powers vested in them by the code. In hearing and determining cases under section 439, the High Court discharges its statutory function of supervising the administration of justice on the Criminal side.
23. The High Court Division may suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice (Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123.
24. The object of this section to confer a kind of paternal or supervisory jurisdiction to correct flagrant miscarriage of justice in matters coming up for adjudication before a criminal court. The main question which the High court has to consider in revision is whether substantial justice has been done. This power is to be exercised in aid of justice and to prevent injustice.
25. The discretion of High Court to interfere with the proceedings pending in a subordinate court is unfettered though this section cannot be interpreted to mean interference with each and every order passed by a subordinate court. The power of revision has to be exercised sparingly and only when grave injustice is likely to be done or where there has been clear miscarriage of justice or the order is illegal or perverse or the impugned order is such that no reasonable court would pass it or when it appears that great injustice has been done by the impugned order.
26. Power possessed by court under section 435/439 Cr.P.C. do not impinge, curtail or limit in any manner whatsoever. The powers under section 435/439 Cr.P.C. are independent and jurisdiction can be exercised under section 439, Cr.P.C to secure the ends of justice.
27. In view of the provision of law on mentioned above and on perusal of the record it clearly appears to us that the learned Sessions Judge Rangpur illegally framed charge on 09.02.2009 without going to the root of the matter and the learned Sessions Judge, Rangpur had done glaring irregularities materially affecting the proceeding and also committed paten impropri-eties vitiating the impugned order dated 09.02.2009. Since there is glaring defect and error in law and since there is a flagrant miscarriage of justice in the impugned order, thus High Court Division has jurisdiction to cure the injustice.
28. The impugned order dated 09.02.2009 for framing charge is bad in law and fact and full of non consideration of vital point of law and also the trial court failed to consider that the complainant opposite party was employer of the accused petitioner who came in a contract for discharging the work order of the accused petitioner. The accused petitioner has become a victim of circumstances as the complainant filed this false, fabricated and concocted case to harass and humiliated the accused petitioner for momentary gain.
29. More over on perusal of the record it clearly appears to us that the present facts and circumstances of the case does not attract section 138 of the Negotiable Instruments Act as the complainant opposite party has taken the shelter of fraud for materialsing her monetary gain and as such the case of complainant opposite party under section 138 of the Negotiable Instruments Act does not attract at all.
30. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur for discharging him under section 138 of the Negotiable Instruments act as he framed the charge without considering the material facts Section 265C of the Code of Criminal Procedure empower the court to discharge the accused if there is sufficient ground for not proceeding against the accused. The learned Sessions Judge ought to have discharged his power judiciously after applying his mind to the material facts and examining the evidence on record carefully. It is not open to a court to base its finding on the assumption. The learned Sessions Judge, Rangpur had based its decision on assumption without going through the facts of the case. On perusal of the record it is abundantly clear that the complai-nant opposite party manufactured the cheque in question under section 138 of the Negotiable Instruments act interpolating the amount in the blank cheque which was given to the complainant opposite party by accused petitioner for official use. It is alleged by the complainant opposite party that Tk. 2,50,00,000/= was given loan to accused petitioner, who is a stranger, without any written document and the loan-money was alleged to have been sent through S.A. paribahan in different dates but the complainant opposite party could not submit any document of sending such amount and more over on the prayer of the accused petitioner the SA Paribahan authority had denied the assertion of the complainant opposite party Rejina Begum. On the other hand, from the document, enquiry report and other evidence on record, it clearly appears to us that the accused petitioner gave those 10 (ten) blank cheques on the basis of contract between the parties to facilitate to draw the bill amount after completion of work. It further reveals that the complainant opposite party withdrew more money from the account of the accused petitioner through seven cheques without completing the work as per contract and out of the rest three cheques, one blank cheque was given to a shop keeper from whom the complainant opposite party took construction materials but that shop keeper on oath denies the assertion of the complainant opposite party and on the other hand admitted the case of the accused petitioner. It further reveals from the facts and evidence on record of the accused petitioner that the complainant opposite party fraudulently converted the rest two cheques interpolating the amount filed two cases against the accused petitioner under section 138 of the Negotiable Instruments Act.
31. The above facts were on the record before the learned Sessions Judge, Rangpur while he rejected the application of the accused petitioner under section 265C of the Code of Criminal Procedure. Such non-consideration of the facts on the part of the learned Sessions Judge, Rangpur clearly shows his non-application of judicial mind to the materials on record.
32. As per decision cited in the case of Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150, in the case of Firoj Khan vs. Captain Golam Nabi (1966) 18 DLR (SC)289 and in the case of Abdur Rashid Khondaker vs. Chandu Master (1964) 16 DLR (SC)505,High court’s power under section 439 of the Code of criminal Procedure is very wide. It can revise the order passed by the inferior criminal court in exercise of its revisional jurisdiction in a proper case. High court, in proper cases, can interfere with question of fact wrongly decided by the trial court. Under section 439, Cr. P.C. High court exercises of its revisional Jurisdiction, in approp-riate case and can go into the fact and disturb the finding of fact as for example where the subordi-nate courts have wrongly applied the law and procedure or not applied the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether High Court Division can interfere. Normally though a revisional court should not take upon itself the task of weighing the evidence a fresh, but its power can not be defined to question of law along and in a fit case, the High court Division can also deal with question of facts where the finding of the court below are unreasonable, perverse and absolutely wrong against the weight of evidence. Considering the facts and circumstances and evidence on record, we are of the firm view that the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur is unreasonable, perverse and absolutely wrong in view of the prevailing facts and circumstances of the case.
33. We may profitably refer the decision in the case of State vs. Khondaker Md. Moniruzzaman reported in BLT (AD) 9 wherein it is decided that where there is no sufficient ground to proceed against the accused, the High court under section 265C of the Code of Criminal Procedure can discharge accused from charge. The facts of the present case clearly indicate the innocence of the accused petitioner and his false implication in this case under section 138 of the Negotiable Instruments Act. The learned Sessions Judge, Rangpur ought to have allowed the application of the accused petitioner under section 265C of the Cr.P.C. discharging accused petitioner A.K.M. Fayekuz-zaman from the charge under section 138 of the Negotiable Instruments Act for ends of justice in view of the defence plea. The facts and circumst-ances require interference for correction of a manifest illegality or the prevention of a gross miscarriage of justice. The exercise of power under section 439/435 of the Code of Criminal Procedure is discretionary with the High Court. Considering the facts and circumstances of the present case, we are of the view that this is a fit case for exercising its discretion as the complai-nant opposite party Rejina Begum has committed double fraud as she withdrew the excess money of the accused petitioner using seven cheques and secondly she converted the present two cheques inserting huge amount by different hand which is a manifest and patent injustice apparent on the face of the record which calls for prompt redress. High Court Division will surely interfere where a person like accused petitioner is being harassed by an illegal and fraudulent proceeding.
34. There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such we are of opinion that there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused.
35. In the present case we have already found that the learned Sessions Judge, Rangpur acted without jurisdiction in passing the impugned order dated 09.02.2009 which is clearly illegal and we are of the view that in order to prevent the same for the ends of justice, the power vested in the High court Division under section 439 of the Code of Criminal Procedure should be exercised in the present case. We, therefore, find that the impugned order dated 09.02.2009 being illegal and without jurisdiction which is liable to be set aside.
In the result, the Rule is, therefore, made absolute and the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur in Sessions Case No. 383 of 2008 arising out of CR case No. 300 of 2008 is set aside. Accused AKM Fayekuzzaman be discharged from the charge levelled against him under section 138 of the Negotiable Instruments Act, 1881 as the present facts and circumstances of the case do not attract section 138 of the Negotiable Instruments Act. Complainant opposite party Rejina Begum may take shelter under appropr-iate law to redress her grievance, if any, if she wishes under actual facts.
Let a copy of this judgment be sent to the trial court at once for necessary action.