Alhaj Golam Rasul Belal Vs. Habibullah Shakir & another [4 LNJ AD (2015) 160]

Case No: Criminal Appeal No. 23 of 2008

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mrs. Mahmuda Khatun,Mr. M. A. Samad,,

Citation: 4 LNJ AD (2015) 160

Case Year: 2015

Appellant: Alhaj Golam Rasul Belal

Respondent: Habibullah Shakir & another

Subject: Inherent Power of the Court,

Delivery Date: 2013-06-11


APPELLATE DIVISION
(CRIMINAL)
 
Md. Muzammel Hossain, CJ
S.K. Sinha, J
Md. Abdul Wahhab Miah, J
AHM Shamsuddin Chowdhury, J.

 
Judgment on
11.06.2013
  Alhaj Golam Rasul Belal
...Appellant
Versus
Habibullah Shakir and another
...Respondents
 
 
Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXXVI of 1881)
Section 138
In exercising the jurisdiction under section 561A of the Code of Criminal Procedure, the High Court Division is not empowered to embark upon an enquiry as to whether notice was duly served upon the accused-respondent No.1 or not as that enquiry requires appreciation of evidence. Therefore, it would not be open to any party to invoke the inherent jurisdiction of the High Court Division to ascertain as to whether notice was duly served or not and get the proceeding quashed for alleged non-service of notice upon the accused-respondent. . . . (9)

Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXXVI of 1881)
Section 138
Whether notice was duly served or not upon the accused-respondent at its correct address or upon its authorized agent or upon himself, all these are questions of facts which are to be ascertained at the time of trial by the trial Court by appreciating evidence adduced by the parties not by the High Court Division in exercising its jurisdiction under section 561A of the Code of Criminal Procedure.      ...(12)

General Clauses Act, (X of 1897)
Section 27
The service of a document by post shall be deemed to be effected at the time at which the document would be delivered in the ordinary course of post if that is done by properly addressing, pre-paying and posting by registered post. Reasons behind this presumption as embodied in law, are not opaque or absence to conceive.    . . .(13)

Negotiable Instruments Act (XXXVI of 1881)
Section 138(1A)
Generally, for the complainant, it is not possible to know about the date of the receipt of the notice and in almost all cases the receipt of notice is denied by the accused and service is asserted by the complainant. To resolve this dispute, which may become very crucial for a decision to be made in determining whether a cause of action has arisen or not in a cheque dishonor case, appreciation of evidence adduced by the parties is sine qua non.           . . . (14)

Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXXVI of 1881)
Section 138
The purpose of the object of issuing notice indicating the factum of dishonor of the cheque is to give an opportunity to the drawer to make the payment within the stipulated period, so that it will not be necessary for the payee to proceed against the drawer, in any criminal action, even though the bank dishonoured the cheque. In this case the accused respondent did not deny that he had no knowledge regarding the notice but he alleged that notice had not been duly served upon him which is purely a question of fact and can be settled down at the time of trial. . . . (17)

Code of Criminal Procedure (V of 1898)
Section 561A
Exercise of jurisdiction under inherent power as envisaged under section 561A of the Code of Criminal procedure to have the Criminal procedure quashed is an exception rather than a rule and the case for quashment must be treated as rarest of rare cases so that it can’t scuttle or burry a prosecution case on flimsy and unfounded reasons. The High Court Division, though, is clothed with inherent power to quash a proceeding or to make such order or orders as may be necessary for the ends of justice that power should be exercised in appropriate case, sparingly and cautiously. . . . (18)

Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXXVI of 1881)
Section 138
The High Court Division in exercising its jurisdiction at the very first instance is not empowered to interfere with the trial proceedings by invoking jurisdiction under section 561A of Code of Criminal Procedure, 1898. It has been consistently held by this Division that when the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding.            . . . (19)

Abdul Quader Chowdhury and others Vs. The state, 28, DLR (AD) 38 and Nizamuddin Mahmood Vs. Abdul Hamid Bhuiyan and another, 60 DLR (AD) 195 ref.

For the Appellant : Mr. M. A. Samad, Senior Advocate, instructed by Mr. Md. Zahirul Islam, Advocate-On-Record.
For Respondent No. 2: Mrs. Mahmuda Begum, Advocate-On-Record.
For Respondent No. 1: None Represented.

Criminal Appeal No. 23 of 2008
 
JUDGMENT
Md. Muzammel Hossain, CJ:

This criminal appeal by leave is directed against the judgment and order dated 24.04.2006 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.5214 of 2005 making the Rule absolute.

The prosecution case, in brief, is that on 09.09.2004 the complainant-appellant filed a petition of complaint being C.R. Case No.3783 of 2004 before the Court of Chief Metropolitan Magistrate, Dhaka alleging, interalia, that the accused-respondent on 18.07.2004 issued a cheque drawn on Standard Chartered Bank in favour of the complainant for settling the business transaction; that the said cheque was presented for encashment in A.C. No. 37000577 with the Standard Chartered Bank through National Bank, Kawran Bazar on 19.07.2004 and the same was returned back to the drawer on the said date for insufficient fund. The complainant on 27.07.2004 issued a notice under section 138(b) of the Negotiable Instruments Act, 1881 upon the respondent and the same was served through Express Guaranteed Post and also through Courier Service and was received by the family members of the respondent on 03.08.2004. The actions and omissions of the accused-respondent in not arranging fund for payment of dues caused an offence under Section 138 of the said Act and hence the case.

The learned Chief Metropolitan Magistrate, Dhaka on 09.09.2004 examined the complainant-appellant on oath under Section 200 of the Code of Criminal Procedure, took cognizance of the case and accordingly, issued warrant of arrest against the accused-respondent under section 138 of the Negotiable Instruments Act, 1881.

The accused-respondent voluntarily surr-endered before the Court of Chief Metropolitan Magistrate, Dhaka on 13.09.2004 and was released on bail on the same date. Thereafter, on 15.09.2004 the case was transferred to the Court of Metropolitan Magistrate, Dhaka for trial. The learned Metropolitan Magistrate, Dhaka by the order dated 03.10.2004 enlarged the accused-respondent on bail and by the order dated 01.12.2004 framed charge against the accused-respondent under section 138 of the Negotiable Instruments Act, 1881.

Being aggrieved by the order dated 01.12.2004 passed by the learned Metropolitan Magistrate, Dhaka the accused-respondent moved to the High Court Division under Section 561A of the Code of Criminal Procedure in Criminal Miscellaneous Case No.5214 of 2005 and a Division Bench of the High Court Division by its Judgment and order dated 24.04.2006 made the Rule absolute.

The complainant-appellant being aggrieved by and dissatisfied with the impugned judgment and order dated 24.04.2006 passed by the High Court Division preferred the instant Criminal Appeal with the Leave of this Division.

Leave was granted to consider the following submissions of the learned Advocate for the complainant-appellant:

"1. That the complainant having filed the instant complaint case under Section 138 of the Negotiable Instrument Act,1881 on 09.09.2004 and at the relevant time provision was to make a demand for the payment of the said amount of money by giving a notice in writing and in the petition of complaint, the complainant having stated that the notice was received by the family member of the accused and in the application under Section 561A of the Code of Criminal Procedure there being no statement to the effect that the person who received the notice is not authorized to receive the same, the High Court Division committed an error of law in quashing the petition of complaint on the ground of alleged non-service of notice upon the accused."
 
Mr. M. A. Samad, the learned Advocate appearing on behalf of the appellant submits that the learned Judges of the High Court Division failed to take into consideration that the address of the accused-respondent No.1 is 7/B, South Begunbari, Police Station-Tajgaon, District-Dhaka and that notices were sent to the said address by registered post and courier services but the accused-respondent used his address as 7/E, South Begunbari (Matisaya), Police Station-Tejgaon, District-Dhaka to mislead the court and the correct address will be proved by the witnesses at the time of trial and as such quashing the proceeding by the High Court Division has caused serious prejudice to the complainant-appellant occasioning failure of justice. He then submits that the complainant-appellant filed the instant complaint case under section 138 of the Negotiable Instruments Act, 1881 on 09.09.2004 and at the relevant time provision was to make a demand for the payment of the said amount of money by giving a notice in writing and in the petition of complaint, the complainant stated that the notice was received by the family member of the accused. Mr. M.A. Samad also stenously submitted that in the application before the High Court Division under Section 561A of the Code of Criminal Procedure the accused respondent did not make any statement to the effect that the person who received the notice was not authorized to receive the same, therefore, the High Court Division committed an error of law in quashing the petition of complaint on the ground of alleged non-service of notice upon the accused-respondent. He finally submits that whether the notice was duly served upon the accused-respondent No.1 is a matter of disputed facts which can only be verified, proved or disproved by adducing evidence at the time of trial and as such the learned Judges of the High Court Division erred in law in passing the impugned judgment and order quashing the proceeding with the finding that the notice was not duly served upon the accused-respondent No.1.

No one appears on behalf of the respondent No.1.

Mrs. Mahmuda Begum, the learned Advocate-on-Record on behalf of the respondent No.2 supports the contention of the learned Advocate for the appellant. 

We have heard the learned Advocates for both the parties and perused the impugned judgment and order of the High Court Division, leave granting order, concise statements and also other materials available on record.

In the instant case the moot question before us is whether due service of notice upon the accused-respondent at his correct address can be decided in a proceeding under Section 561A of the Code of Criminal Procedure. The complainant-appellant filed the petition of complaint against the accused-respondent on 09.09.2004 before the Court of Chief Metrop-olitan Magistrate, Dhaka. The complainant-appellant presented the cheque for encashment in the Bank on 19.07.2004 and the said cheque was returned back to him on the same date for insufficient fund and thereafter, the compla-inant-appellant on 27.07.2004 issued a notice under section 138(b) of the Negotiable Instruments Act, 1881 upon the accused-respondent through Express Guaranteed Post and also through Courier Service which was received by the family members of the respondent on 03.08.2004. In this case the complainant-appellant asserted that notice had been duly served upon the accused-respondent after dishonour of the cheque. It appears that in the complaint petition, the complainant-appellant clearly stated that notice was received by the family member of the accused-respondent. It is a disputed question of fact whether the notice was duly served upon the accused-respondent or not. The service of notice upon the accused-respondent can be ascertained by the trial Court after examining the witnesses of both the parties at the time of trial. In exercising the jurisdiction under section 561A of the Code of Criminal Procedure, the High Court Division is not empowered to embark upon an enquiry as to whether notice was duly served upon the accused-respondent No.1 or not as that enquiry requires appreciation of evidence. Admittedly, in the application under section 561A of the Code of Criminal Procedure there was no statement to the effect that the person who received the notice was not authorized to receive it. Therefore, it would not be open to any party to invoke the inherent jurisdiction of the High Court Division to ascertain as to whether notice was duly served or not and get the proceeding quashed for alleged non-service of notice upon the accused-respondent. In the case of Abdul Quader Chowdhury and others -Vs- The State reported in 28 DLR (AD) 38 this Division while speaking on the jurisdiction under section 561A of the Code of Criminal Procedure observed:

"In exercising the jurisdiction under section 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."
 
Further in the case of Nizamuddin Mahmood -Vs- Abdul Hamid Bhuiyan and another reported in 60 DLR (AD) 195 this Division held that since the date of receipt of notice is a question of fact to be ascertained at the time of trial, non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence.

In the instant case the complainant-appellant asserted that he having received the information of dishonour of the cheque by the Bank, served notice under section 138(b) of the Negotiable Instruments Act, 1881 upon the accused-respondent No.1 and filed the instant complaint case.

It appears that the High Court Division on mistaken view embarked upon an enquiry as to whether notice was duly served upon the accused-respondent No.1 through Express Guaranteed Post and also through Courier Service. It is unfortunate to note that whether notice was duly served or not upon the accused-respondent at its correct address or upon its authorized agent or upon himself, all these are questions of facts which are to be ascertained at the time of trial by the trial Court by appreciating evidence adduced by the parties not by the High Court Division in exercising its jurisdiction under section 561A of the Code of Criminal Procedure.

It is the case of the complainant-appellant that the legal notice was served within 15 days [as per earlier provision i.e. prior to the Negotiable Instruments (Amendment) Act, 2006] then was, prior to the Negotiable Instruments (Amendment) Act,2006] of the receipt of information of the return of the cheque as unpaid from the bank and as such the question of the date of receipt of the notice is not at all material for quashing the procee-ding under Section 138 of the Negotiable Instrument Act,1881, keeping in view the provisions of section 27 of General Clauses Act,1897 which contemplates that the service of a document by post shall be deemed to be effected at the time at which the document would be delivered in the ordinary course of post if that is done by properly addressing, pre-paying and posting by registered post. Reasons behind this presumption as embodied in law, are not opaque or absence to conceive. In the decision of the case of Nizamuddin Mahmood -Vs- Abdul Hamid Bhuiyan and another reported in 60 DLR (AD) 195 at page 197, paragraph 16 this Division observed as under:

"16. It further appears that it is not possible to know about date of receipt of the notice for the complainant and such a fact is to be proved at the trial and generally in all cases the receipt of notice is denied and service is asserted and therefore, such a question cannot be decided in a proceeding under section 561A of the Code of Criminal Procedure in view of the decision of this Court in the case of Abdul Quader Chowdhury –Vs- State reported in 28 DLR (AD) 38 where it was held that where assessment of evidence is involved the case cannot be quashed." 
 
Generally, for the complainant, it is not possible to know about the date of the receipt of the notice and in almost all cases the receipt of notice is denied by the accused and service is asserted by the complainant. To resolve this dispute, which may become very crucial for a decision to be made in determining whether a cause of action has arisen or not in a cheque dishonor case, appreciation of evidence adduced by the parties is sine qua non.

The Negotiable Instruments (amendment) Act, 2006 (Act III of 2006), came into force on 9 February 2006. In the said amendment the mode of service of notice as required under section 138(b) has been incorporated in section 138 (1A) which reads as under:

“1(A) The notice required to be served under clause (b) of sub-section (1) shall be served in the following manner:
By delivering it to the person on whom it is to  be served; or
By sending it by registered post with acknowledgement due to that person at his usual or last known place of abode or business in Bangladesh; or
By publication in a daily Bangla national newspaper having wide circulation.”

The case at hand was filed earlier to the said amendment. Prior to this amendment, there was no specific provision as to the mode of service of notice as mentioned above.

However, the purpose of the object of issuing notice indicating the factum of dishonor of the cheque is to give an opportunity to the drawer to make the payment within the stipulated period, so that it will not be necessary for the payee to proceed against the drawer, in any criminal action, even though the bank dishonoured the cheque. In this case the accused respondent did not deny that he had no knowledge regarding the notice but he alleged that notice had not been duly served upon him which is purely a question of fact and can be settled down at the time of trial.

Exercise of jurisdiction under inherent power as envisaged under section 561A of the Code of Criminal procedure to have the criminal procedure quashed is an exception rather than a rule and the case for quashment must be treated as rarest of rare cases so that it can’t scuttle or burry a prosecution case on flimsy and unfounded reasons. The High Court Division, though, is clothed with inherent power to quash a proceeding or to make such order or orders as may be necessary for the ends of justice that power should be exercised in appropriate case, sparingly and cautiously but in the above case the High Court Division on a flimsy ground quashed the proceeding of a Criminal Case which is liable to be knocked down by this Division.

In view of the above findings and observations, we are of the view that the High Court Division in exercising its jurisdiction at the very first instance is not empowered to interfere with the trial proceedings by invoking jurisdiction under section 561A of Code of Criminal Procedure,1898. It has been consistently held by this Division that when the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding. In this context reference may also be made to the decision of the case of Habibur Rahman Howlader -Vs- State and another reported in 53 DLR (AD) 111.

From the aforesaid discussions and findings, we are of the view that the impugned judgment and order of the High Court Division is not sustainable in law. Accordingly, we find merit in the appeal.

In the result, the appeal is allowed without any order as to cost. The impugned judgment and order dated 24.04.2006 passed by the High Court Division in Criminal Miscellaneous Case No.5214 of 2005 is hereby set aside and consequently the proceeding of C. R. Case No.3783 of 2004 under Section 138 of the Negotiable Instruments Act,1881, now pending in the Court of Metropolitan Magistrate, Dhaka shall proceed in accordance with law.

Ed.