Al haj Md. Fzlul Hoque Vs. The State and another, (Jahangir Hossain, J.)

Case No: Criminal Miscellaneous Case No. 32208 of 2018

Judge: Jahangir Hossain, J And Md. Jahangir Hossain, J.

Court: High Court Division,

Advocate: Mr. Md. Iqbal Kabir, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Al-Haj Md. Fazlul Hoque

Respondent: The State and another

Subject: Negotiable Instruments Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Jahangir Hossain, J

And

Md. Jahangir Hossain, J.

 

Judgment on

28.11.2018

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Al-Haj Md. Fazlul Hoque

. . .Accused-Petitioner

-Versus-

The State and another

. . .Opposite Parties

Negotiable Instruments Act (XXVI of 1881)

Section 21C

Cheque in question may be prepared by different persons and pen but the question is whether the cheque has been signed by its owner. Admittedly, the owner i.e. drawer handed over the cheques to the opposite party No. 02 after his signature on those cheques which may be undated given by the owner to the drawer for encashment in future inserting appropriate date on the cheque in question. . . .(13)

Negotiable Instruments Act (XXVI of 1881)

Section 138

General Clauses Act (X of 1897)

Section 27

It appears from petitions of complaint that the opposite party No. 2 served legal notices through his lawyer which were received on different dates, as mentioned in the respective complaints, by the accused- petitioner. The right of filing complaint was created after expiry of 30 (thirty) days from the date of receipt of the legal notices. It also appears that the opposite party No. 2 filed complaints before the concerned magistrate court within the stipulated time as required by law. So no question of illegality is found in filing the petitions of complaint against the accused petitioner. Nevertheless, once the notice was sent by registered post with acknowledge with proper address of the recipient , there is presumption under section 27 of the General Clauses Act that the service of the notices shall be deemed to have been effected accordingly. Although Negotiable Instruments Act being a special law does not invite any other law like General Clauses Act but it is simple maxi which can be applied in service of notice in the manner as stated in section 27 of General Clauses Act].           . . . (14)

Code of Criminal Procedure (V of 1898)

Section 561A

The date of issuance of the cheque is a question of fact to be ascertained at the time of trial. Non disclose of such fact in the petition of complaint or in the legal notice cannot offer the proceeding liable to be quashed. It is to be seen first whether the prima facie case is present on the fact of complaint-petition which constitutes and offence under section 138 of the Negotiable Instruments Act. It would be a great prejudice to the complaint if the proceeding is quashed at this state i.e. before proving his case by evidence Clause (a) to the provision of section 138 of the Negotiable Instruments Act, 1881 refers to six months from the date from which the cheque was drawn not from the date the cheque was handed over. ...(15)

Negotiable Instruments Act (XXVI of 1881)

Section 138

It is immaterial as to whether civil dispute is present or not in connection with the transactions. The question is only the cheque which has been returned unpaid to the complaint and accordingly he sought redress by filing the above cases following the provision of the Act. He has come before the court with clean hand upon refusal of the cheques unpaid by the concerned Bank of the accused-petitioner.      . . .(17)

48 DLR (AD) 213; 56 DLR (HD) 636; 2000 Criminal Law Journal 1988 and 1993; Criminal Law Journal 2359; 66 DLR (HD) 547; 1984-1997 DCR (1) 380; 17 BLC (AD) 177; 32 DLR (AD) 1 and 48 DLR (AD) 87 ref.

Mr. Md. Iqbal Kabir, Advocate

. . . For the Petitioner

Mr. Md. Abdul Alim Miah, Advocate

. . . For the opposite-party No.02

Mr. K M Zahid Sarwar, D.A.G with

Ms. Yesmin Begum Bithi, D.A.G

Mr. Nizamul Haque Nizam, A.A.G and

Mr. Mohammad Shaheen Mirdha, A.A.G

. . . For the State

JUDGMENT

Jahangir Hossain, J:  This Court upon 10[ten] applications moved by the accused-petitioner under section 561-A of the Code of Criminal Procedure issued rules along with orders of stay calling upon the opposite-parties to show cause as to why the proceedings of Sessions Case Nos. 101/2017, 98/2017, 180/2017, 117/2017, 99/2017, 118/2017, 116/2017, 122/2017, 121/2017 arising out of C.R. Case Nos. 58/2017, 62/2017, 57/2017, 48/2017, 60/2017, 52/2017, 49/2017, 59/2017, 50/2017, 51/2017, 58/2017 under section 138(1) of the Negotiable Instruments Act, 1881, now pending in the Court of learned Sessions Judge, Thakurgaon should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             Since the parties and issues are identical, these Miscellaneous Cases being Nos. 32208/2018, 32213/2018, 32214/2018, 32197/2018, 32198/2018, 32199/2018, 32200/2018, 32207/2018, 32713/2018, 32845/2018 have been heard together and disposed them of by passing one single judgment.

3.             Prosecution case, in brief, is that the opposite party No.02 as complainant filed petitions of complaint with the magistrate court on different dates alleging that through business transactions a relationship was grown up between him and the accused-petitioner. During such transactions both parties agreed to sell and purchase ‘rice bran’ from the Auto Rice Mills of accused-petitioner. Subsequently a registered deed of contract was made on 29.08.2013 between them on payment of Tk. 1,42,00,000/-[one crore forty two lakh] received by the accused-petitioner from the opposite-party No. 02 on condition to repay the same with effect from 15.01.2014 to 30.01.2014. Failing which the accused-petitioner shall be bound to supply 35,00,500/-[thirty five lakh five hundred] sacks of rice bran weighting 55 Kg per sack to the opposite party No. 02 within 24[twenty four] months with effect from 30.01.2014 to 30.01.2016.

4.             As per alternative clause of contract, the accused-petitioner supplied only 12,980[twelve thousand nine hundred eighty] sacks of ‘rice bran’ to the opposite party No. 02 instead of 35,00,500/-[thirty five lakh five hundred] sacks. As per third option of the contract the accused-petitioner would have to repay Tk-900/- for each sack of ‘rice bran’ to the opposite party No.02 on the remaining 34,87,520/- sacks.

5.             According to the said terms and conditions of the contract, the accused-petitioner issued ten cheques alternatively on his account of National Bank Limited, Panchagarh branch and handed over the same to the opposite party No. 02 as security. Failing to fulfill all the conditions mentioned above, the cheque being Nos. NDC/F-7817833, NDC/F-7817829, NDC/F-7817828, NDC/F-7817825, NDC/F-7817826, NDC/F-7817831, NDC/F-7817830, NDC/F-7817834, NDC/F-7817827, given by the accused-petitioner, were presented to the Uttara Bank Limited, Thakurgaon Branch on different dates for encashment. But the cheques in question were returned unpaid from the Bank of the accused-petitioner due to insufficiency of found as stated in the dishonored slips. Thereafter, the opposite party No. 02 sent legal notices to the accused-petitioner through his engaged lawyer on different occasions [according to dishonored dates] requesting him to repay the amount of dishonored cheques within thirty days. The accused-petitioner received the notices on different occasions as mentioned in the respective petition of complaint but did not pay heed to repay the amounts. Hence, the cases were started against the accused-petitioner under section 138(1) of the Negotiable Instruments Act, 1881.   

6.             In support of the Rules, Mr. Md. Iqbal Kabir, learned Advocate contends that as security ten undated cheques were issued by the accused-petitioner and handed the same over to the opposite party No. 02 on the day of 29.08.2013 when a registered deed of contract was executed. Subsequently, the figure of the amount has been written on each cheque by different persons and pen and undated cheques after being filled up, have been placed in the bank after around 3½ years from the time the cheques have been handed over. It is further submitted that admittedly 12,980 sacks of ‘rice bran’ were supplied to the opposite party No. 02 towards part payment of the cheques issued by the accused-petitioner. The cost of the said sacks of ‘rice bran’ stands Tk. 1,16,82,000/-[one crore sixteen lakh eighty two thousand] as per Tk. 900 for each. In that view of the fact remaining money stands [1,42,00,000-1,16,82,000]= Tk. 25,18,000/-only and the amount shown in those cheques is higher than the amount due. If a cheque is placed by showing higher amount, than the amount due or payable due to dishonor, the cheques in question would not create any cause of action under section 138 of the Negotiable Instruments Act, 1881.

7.             It is further contended that it is a mandatory provision to mention in the complaint as to when the cheque was issued but in the present cases as per section 138(1)(a) of the Negotiable Instruments Act, 1881 the complainant did not mention the issuing dates of the cheques.

8.             Learned Advocate finally submits that as per decision, reported in 48 DLR(AD) 213, para-14 the petitions of complaint, examination of complainant, registered deed of contract dated 29.08.2013 as mentioned in the complaint petitions and order of declining or inclining to frame charges are the materials of the prosecution which can be scrutinized by this Court under section 561A of the Code of Criminal Procedure.

9.             In support of these contentions he has also cited some more decisions namely, 56 DLR (HD) 636, 48 DLR (AD) 213, 2000 Criminal Law Journal, Page-1988, 1993 Criminal Law Journal, Page-2359, 66 DLR (HD)547, 1984-1997 DCR (1)380, 17 BLC (AD)177, 32 DLR(AD)1 and 48 DLR(AD)87.

10.         Mr. K M Zahid Sarwar along with Ms. Yesmin Begum Bithi, learned Deputy Attorney Generals, Mr. Nizamul Huq @ Nizam and Mr. Mohammad Shaheen Mridha, learned Assistant Attorney Generals appearing on behalf of the State-opposite party opposes the Rules.  

11.         On the contrary, Mr. Md. Abdul Alim Miah, learned Advocate appearing for the opposite party No.02 by filing affidavits-in-opposition submits that a criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution [48 DLR(AD) 213]. Ante-dated cheque written by different person and pen as alleged by the accused-petitioner is a disputed question of facts which cannot be looked in by the High Court Division under section 561A of the Code of Criminal Procedure and the rules issued by this Hon’ble Court are liable to be discharged.

12.         In the instant cases many issues have been raised by the accused-petitioner but it is to be borne in mind that the opposite party No. 02 as complainant brought the allegation against the accused-petitioner under section 138(1) of the Negotiable Instruments Act, 1881 for dishonored cheques issued by the accused-petitioner earlier in favour of the opposite party No. 02 due to insufficiency of fund. So we should confine ourselves within the purview of `the Act [Negotiable Instruments Act, 1881] which is, no doubt, a special law as pointed out by the learned Advocate for the accused-petitioner. Now it is to be seen as to whether the complainant has violated any provisions of this Act in filing the complaint cases. The object of the contract was that the terms and conditions were to be fulfilled by the accused-petitioner within the stipulated time, as mentioned in the contract. If once failed to do so, the complainant would have the right to place by inserting dates in the cheques for encashment. The issued cheques without date will be treated as inchoate immature documents handed over to the payee with implied authority to pen the date on the cheques in question. The drawer of the cheque only can chose and decide to hand over dated, post-dated or undated cheque to the payee. But he cannot eventually come forward with a plea that undated cheque was given to the payee who is not allowed to present the cheque to the bank for encashment by putting date on it. Section 21C of the Negotiable Instruments Act, 1881 is very much clear that,

“21C. Anti-dating and post-dating- A promissory note, bill of exchange or cheque is not invalid by reason only that it is ante-dated or post-dated:

Provided that the ante-dating or post-dating does not involve any illegal or fraudulent purpose or transaction.”

13.         Cheques in question may be prepared by different persons and pen but the question is whether the cheque has been signed by its owner. Admittedly, the owner i.e. drawer handed over the cheques to the opposite party No. 02 after his signature on those cheques which may be undated given by the owner to the drawer for encashment in future inserting appropriate date on the cheques in question.

14.         It appears from petitions of complaint that the opposite party No. 02 served legal notices through his lawyer which were received on different dates, as mentioned in the respective complaints, by the accused-petitioner. The right of filing complaint was created after expiry of 30[thirty] days from the date of receipt of the legal notices. It also appears that the opposite party No. 02 filed complaints before the concerned magistrate court within the stipulated time as required by law. So no question of illegality is found in filing the petitions of complaint against the accused-petitioner. Nevertheless, once the notice was sent by registered post with acknowledgement with proper address of the recipient, there is presumption under section 27 of the General Clauses Act that the service of the notices shall be deemed to have been effected accordingly [although Negotiable Instruments Act being a special law does not invite any other law like General Clauses Act but it is a simple maxim which can be applied in service of notice in the manner as stated in section 27 of General Clauses Act]. The complainant [opposite party No. 02] also complied with the provision of section 138[I](a) of the Negotiable Instruments Act.

15.         However, the date of issuance of the cheque is a question of fact to be ascertained at the time of trial. Non-disclosure of such fact in the petition of complaint or in the legal notice cannot offer the proceeding liable to be quashed. It is to be seen first whether the prima faci case is present on the face of complaint-petition which constitutes an offence under section 138 of the Negotiable Instruments Act. It would be a great prejudice to the complainant if the proceeding is quashed at this stage i.e. before proving his case by evidence. Clause (a) to the provision of section 138[1] of the Negotiable Instruments Act, 1881 refers to six months from the date from which the cheque was drawn not from the date the cheque was handed over.

16.         Here in this case; I have come across from the proposed amendment of the written statement that the fundamental character of the defendant-appellant’s earlier case would not be changed in any manner, if the proposed amendment of written statement come into force and the proposed amendment is definitely required for determining the real question of controversy between the parties to the original suit for partition.

17.         Having regard to the facts, circumstances and the discussions referred to above, I am constrained to hold such a view that the learned court of appeal below was not lawful in disallowing the application for acceptance of the additional written statement and in the impugned judgment and order there has been non application of judicial mind in giving some premature observation and findings on the sub-kabala deed No.20518 dated 15.11.1968.

18.         In the result, the Rule having sufficient merit is made absolute without any order as to costs. The impugned order dated 08.06.2015 passed by the learned Additional District Judge, 2nd Court, Bogura in Partition Appeal No.147 of 1997 is hereby set aside.

36.         Communicate the judgment and order at once.

Ed. 


Criminal Miscellaneous Case No. 32208 of 2018 With Criminal Miscellaneous Case No. 32213 of 2018; Criminal Miscellaneous Case No. 32214 of 2018; Criminal Miscellaneous Case No. 32197 of 2018; Criminal Miscellaneous Case No. 32198 of 2018; Criminal Miscellaneous Case No. 32199 of 2018; Criminal Miscellaneous Case No. 32200 of 2018; Criminal Miscellaneous Case No. 32207 of 2018; Criminal Miscellaneous Case No. 32713 of 2018 and Criminal Miscellaneous Case No. 32845 of 2018.