Mohammad Ali Vs. The State and another, 3 LNJ (2014) 853

Case No: Criminal Misc. Case No. 7936 of 2009

Judge: Mohammad Anwarul Haque,

Court: High Court Division,,

Advocate: Mr. K.B. Rumy,Mr. Zahirul Hoque Zahir,Mr. Kazi Md. Nurul Amin,,

Citation: 3 LNJ (2014) 853

Case Year: 2014

Appellant: Mohammad Ali

Respondent: The State and another

Delivery Date: 2012-01-11

HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
 
Mohammad Anwarul Hoque, J.
And
Md. Mozibur Rahman Miah, J.

Judgment on
11.01.2012
  Mohammad Ali son of Mr. Md. Alauddin, 176 Nababpur Road (4th Fl.) Dhaka and 23/24 Jugi Nagor Lane, Wari, Dhaka.
...Accused-petitioner.
-Versus-
The State and another.
... Opposite-parties.
 
 
Negotiable Instruments Act, (XXVI of 1881)
Sections 13, 123(A), 123A(1), 123A(1)(a), 126 and 138(I)
Cross-cheque/Account Payee cheque is also cheque as contemplated in section 138(1) of the Negotiable Instruments Act but only changes its normal character by ceasing its negotiability but it does not lose its character as negotiable instrument as defined in section 13 of the Act. In fact, section 123A (1)(a) is to be read with clause (b) of  the same section. The provisions laid down in clause (b) of section 123A(1) clearly gives the way how to encash amount mentioned in the “account payee” cheque. In addition to that provision we are also to follow the provision of section 126 of the said Act. Since the “account payee cheque” mentioned in the complaint-petition has not lost it’s character as negotiable instrument, the same can be easily brought within the mischief of “any cheque” mentioned in section 138(1) of the Negotiable Instruments Act because cheque includes “account payee cheque” also. . . . (11 and 14)

Mr. K.B. Rumy, Adv.
.... For the accused-petitioner.
Mr. Zahirul Hoque Zahir, D.A.G.
.... For the State.
Mr. Kazi Md. Nurul Amin, Adv.
.... For the Opposite-party No.1.

Criminal Misc. Case No. 7936 of 2009
with Criminal
Misc. Case No. 9523 of 2009
with Criminal Misc. Case No. 9522 of 2009
with Criminal Misc. Case No. 24730 of 2009
 
JUDGMENT
Mr. Mohammad Anwarul Haque, J:
 
Criminal Miscellaneous Case No.7936 of 2009, Criminal Miscellaneous Case No.9523 of 2009, Criminal Miscellaneous Case No.9522 of 2009, and Criminal Miscellaneous Case No. 24730 of 2009 are taken together for disposal in one judgment since the question of law and facts involved in those cases are identical in nature and the rules, so issued, are also found to be in the same language both in word and spirit where incidentally conducting learned Advocate in all these cases are same.

However, in all these cases, Rule were issued calling upon the Opposite-parties to show cause as to why the proceeding of Sessions Case No.382 of 2009 arising out of C.R. Case No.2599 of 2008 punishable under section 138 of the Negotiable Instruments Act,1881 pending in the Court of Joint Metropolitan Sessions Judge, 4th Court, Dhaka, Metropolitan Sessions Case No. 401 of 2009 arising out of C.R. Case No.2504 of 2009 punishable under section 138 of the Negotiable Instrument Act,1881 pending in the Court of 2nd Joint Metropolitan Sessions Judge,  Dhaka, Metropolitan Sessions Case No.3167 of 2008 arising out of C.R. Case No.2790 of 2008 punishable under section 138 of the Negotiable Instruments Act,1881 pending in the Court of  Joint Metropolitan Sessions Judge, 6th Court,  Dhaka, Metropolitan Sessions Case No.376 of 2009 arising out of C.R. Case No.2281 of 2008 punishable under section 138 of the Negotiable Instruments Act,1881 pending in the Court of 5th  Joint Metropolitan Sessions Judge,  Dhaka shall not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

In short, the case of the prosecution for the purpose of disposal of the Rules is as follows:
One Khan Mohammad Raqib Hossain, Executive Officer of  the Export Import Bank of Bangladesh, Nawabpur Branch, Dhaka filed a complaint-petition in the respective C.R. cases, referred to above, stating that accused-petitioner took loan from the Bank under different sanction letter order mentioned in the compliant-petition with a commitment to repay by sixty consecutive installments  and in order to repay the loan account payee cheques were issued but ultimately all those cheques, referred in the compliant-petition, are found to have been bounced for insufficient fund. As a result, the complainant-petitioner issued a notice under section 138(1)(b) of the Negotiable Instruments Act but the accused-petitioner did not respond for which having no other alternative the complainant-opposite-party filed all these C.R. cases in order to secure the trial of the accused-petitioner for committing the offence punishable under section 138 of the Negotiable Instruments Act, 1881.

On recording the initial statement of the complainant under section 200 of the Code of Criminal Procedure the learned Magistrate took cognizance of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 and issued the process to secure the attendance of the accused-petitioner to face trial. Ultimately accused-petitioner made his appearance in all those cases, referred to above, and obtained bail, and filed all the Miscella-neous cases under section 561A of the Code of Criminal Procedure alleging that the case under section 138 of the Negotiable Instruments Act,1881 is not, at all, maintainable because “cross-cheque” or “account payee” cheque as has been mentioned in the Compliant-Petition  does not come within the scope of section 138 of the Negotiable Instruments Act,1881 because in no way cross-cheque preserves the power of negotiability. Moreover, section 138 of the Negotiable Instruments Act, 1881 does not allow anyone to prosecute unless the cheque is received by the Bank, submitted by another person. On such counts Rule of these matters as has been so issued are to be made absolute.

Mr. K.B. Rumy the learned Advocate for the accused-petitioner, at the very outset of the submission, has drawn our attention in the provision laid down in section 123A of the Negotiable Instruments Act which has been placed in Chapter 14 of the said Act in the name and style of the special provision relating to cheque where cheque crossed or account-payee cheque shall be ceased to be a Negotiable Instrument in the language employed in section 123A,(2)(a) of the Negotiable Instruments Act,1881; as such the same cannot be brought within the mischief of section 138 of the Negotiable Instruments Act,1881.

Moreover, Mr. Rumy has also pointed out that to bring the matter within the purview of section 138 of the Negotiable Instruments Act there must be an existence of a 3rd person to whom cheque is to be issued for encashment where it is to bounced for insufficient fund or it exceeds the amount arranged to be paid from that account by an agreement made with that Bank; but in the instant case there is no such person as drawee who has been denied to encash the amount mentioned in the cheque. So no criminal proceeding under section 138 of the Negotiable Instruments Act can be allowed to continue causing unnecessary harassment of the accused-petitioner.

Mr. Zahirul Hoque Zahir, the learned Deputy Attorney-General appearing on behalf of the opposite-party No.2 has strongly opposed the Rule alleging, inter alia, that the subject matter of a criminal proceeding under section 138 of the Negotiable Instruments Act, 1881 is “any cheque” which has been defined in section 6 of the Negotiable Instruments Act. Moreover, since “account payee cheque” is also a cheque within the meaning of section 6 and does not change its character as negotiable instrument the same cannot be kept out of the ambit of section 138 of the Negotiable Instruments Act. In fact, section 123A(2)(b) of the Negotiable Instruments Act put restriction in order to encash the amount mentioned in the cheque because such change will simply make it not negotiable but does not make it ousted from the character of Negotiable Instrument. In support of his contention the learned Deputy Attorney General has brought to our notice in the provisions laid down in section 13, 123A(2)(b) and section 126 of the Negotiable Instruments Act. Moreover, the words “any cheque” as has been employed in section 138 of the Negotiable Instruments Act, 1881 clearly bring the cheque whether it is a “bearer” or “account payee” within the mischief of section 138. In no way, it can be regulated by section 123A(2)(a) rather, such “account payee” cheque is to be regulated by both subsection (2)(a) and (b) of section 123A of the Negotiable Instruments Act. Moreover, the word “any person” appearing in section 138 is nothing but a person who received the cheque from the drawer for encashment. In the instant case Bank as a lender received the “cheque” from the borrower, the present accused-petitioner, and presented it for encashment to the Bank where the accused petitioner is maintaining his account but such impugned cheques are found to have been bounced and returned to the “drawer” for insufficient fund. So, the Bank has got two status which is enough to refute the contention of the learned Advocate for the accused-petitioner.

Mr. Kazi Nurul Amin the learned Advocate appearing on behalf of the Complainant-Opposite-Party No.1 has adopted the argument placed by the learned Deputy Attorney-General for Opposite-party No.2. Mr. Amin further submits that the “account payee cheque” is no doubt a cheque as defined in section 6 read with section 126 and 123A of the Negotiable Instruments Act where the mode of collection of money mentioned in the cheque has been properly described. The provision laid down in section 123(2)(a) cannot be read or taken into consideration in an isolated manner rather the provision laid down in clause (b) is to be taken into consideration for the purpose of collection of money mentioned in the cheque. Mr. Amin further argues that section 123(2) is nothing but a procedural one given by the legislature placing in the specific provision in Chapter XIV affording a guideline how to encash the amount mentioned in the “account payee cheque” which has been ceased it’s simple “negotiable character” but never allowed to be considered as a negotiable instrument, defined in section 13 of the Negotiable Instrument Act, 1881.
Let us quote the provision laid down in section 123A & 126 of the Negotiable Instrument Act since the impugned cheque is admittedly “account payee” one:
123A. Cheque crossed “account payee- “ (1) Where a cheque crossed generally bears across its face an addition of the words “account payee” between the two parallel transverse lines constituting the general crossing, the cheque, besides being crossed generally, is said to be crossed “account payee.”
(2) when a cheque is crossed “account payee”
(a) it shall cease to be negotiable; and
(b) it shall be the duty of the banker collecting payment of the cheque to credit the proceeds there of only to the account of the payee named in the cheque.

This section is also to be read with section 126 placed in same Chapter XIV of the Negotiable Instruments Act, 1881.
Section 126. Payment of cheque crossed generally- Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker.”

On meticulous examination of these two provisions laid down in section 123A & 126 read with the definition of the “cheque” given in section 6 it has become clear to us that cross-cheque/Account Payee cheque is also cheque as contemplated in section 138(1) of the Negotiable Instruments Act but only changes its normal character by ceasing its negotiability but it does not lose its character as negotiable instrument as defined in section 13 of the Act. In fact, section 123A (1)(a) is to be read with clause (b) of  the same section which have already quoted. The provisions laid down in clause (b) of section 123A(1) clearly gives the way how to encash amount mentioned in the “account payee” cheque. In addition to that provision we are also the follow the provision of section 126 of the said Act.

We are to remember that the principal object of interpretation is not only to find out a particular meaning of a word or words in a statute, but to find out the intention of the legislature which has been expressed through the medium of words. To interpret is not to restrict or to expand the meaning of the statute which, in truth, it intends to convey. So every effort is necessary to make a statute workable and not to render it ineffective by giving a meaningless interpretation. It is an elementary rule of construction that the intention of the legislature must be sought from the statute taken as a whole. In arriving at the true meaning of any particular phrase or words employed in the statute it must not be viewed isolated from the context, it must be viewed in its whole context, the title, the preamble, and all other related parts of the statute.

Keeping the above view in mind we are to say that the clause (a) of section 123A(2) is absolutely dependent on clause (b) when the cheque is the “account payee” one since in clause (a) only word “negotiable” has been used not the words “Negotiable Instruments” as defined in section 13 of the Act, 1881.

In the light of the above observation we are of the opinion that since the “account payee cheque” mentioned in the complaint-petition has not lost it’s character as negotiable instrument, the same can be easily brought within the mischief of “any cheque” mentioned in section 138(1) of the Negotiable Instruments Act because cheque includes “account payee cheque” also. So we find no substance in the contention of the learned Advocate for the petitioner.

Now let us see whether the Bank being Complainant can have any right to file a case under section 138 of the Negotiable Instruments Act in absence of “any person” appearing in section 138(1) of the Negotiable Instruments Act.

Let us quote the provision laid down in section 138(1) of the Negotiable Instruments Act-
 
138. Dishonour of cheque for insuff-iciency, etc. of funds in the account-“ (1) Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account  is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to the amount of the cheque, or with both.” 

We have already discussed that the complainant Bank is the “drawee” of the cheque whereas accused petitioner is the “drawer”. Admittedly complainant petitioner as a “drawee” submitted the impugned “account payee cheque” in the Bank where the accused-petitioner has been maintaining his account but the same has been bounced for want of sufficient fund. In such circumstance we find nothing which will not go to fulfill the requirements of law as contemplated in section 138(1) of the Negotiable Instruments Act, 1881.

In fact, when the cheque is returned to drawer by the Bank for insufficient fund certainly it comes within the mischief of section 138(1) of the Negotiable Instruments Act since other mandatory provisions are found to have been complied with. To have the above views we may also safely rely upon the decision of an unreported case of Arifuzzaman –VS- State and another, passed in a criminal petition for leave to appeal No. 514 of 2010 of the Appellate Division of Supreme Court of Bangladesh.

In the light of the above findings we are of the opinion that there is no merit in these Rules and accordingly all these rules are to be discharged.

In the result, the Rules are discharged.

The order of stay passed at the time of issuance of the rule is hereby vacated.

Let a copy of the judgment and order be annexed with all the Criminal Miscellaneous Case mentioned above and sent to the court below at once for information and necessary action.

Ed.