Nizam Uddin Mahmood Vs. Abdul Hamid Bhuiyan and another, I ADC (2004) 273

Case No: Criminal Appeal No. 12 of 2003

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Rokanuddin Mahmud,,

Citation: I ADC (2004) 273

Case Year: 2004

Appellant: Nizam Uddin Mahmood

Respondent: Abdul Hamid Bhuiyan

Subject: Quashment of Proceedings, Negotiable Instrument,

Delivery Date: 2004-6-1

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
Syed JR Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
 
Nizam Uddin Mahmood
..............Appellant
Vs.
Abdul Hamid Bhuiyan and another
.............Respondent
 
Judgment
June 1, 2004.
 
Negotiable Instrument Act, 1881
Section 138 (1) (b) and (c), 141
Code of Criminal Procedure
Section 561A, 241A
Cheques can be presented on more than one occasions for encashment, within 6 months from the date of its issuance and the complainant was, therefore entitled to present the cheques in question as many times as thought necessary within the aforesaid period of 6 months and by serving a notice within 15 days from the date when the cheques were returned last, the requirement of law has been fulfilled………….. (4)
 
Cases Referred to-
Habibur Rahman Hawlader vs. State 55 DLR (HCD) 199 in 53 DLR (AD) 111, SM Anwar Hossain Vs. Md.  Shafiul Alam, (Chand) 51 DLR (AD) 218, 51 DLR (AD) 218.
 
Lawyers Involved:
Rokanuddin Mahmud, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record-For the Appellant.
Amir-ul-Islam, Senior Advocate (Mahbubey Alam, Senior Advocate, with him) instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For Respondent No. 1.
B. Hossain, Advocate-on-Record-For Respondent No. 2.
 
Criminal Appeal No. 12 of 2003
(From the judgment & order dated 25.06.2002 passed by the High Court Division in Criminal Miscellaneous case No. 5518 of 2001).
 
JUDGMENT
 
Amirul Kabir Chowdhury J.
 
1. This appeal by leave at the instance of the Complainant is against the judgment and order dated 25.06.2002 passed in Criminal Miscellaneous Case No.5518 of 2001 by a Division Bench of the High Court Division making the rule absolute thereby quashing the proceeding of petition case No. 515 of 2001 under Section 138 of the Negotiable Instrument Act, 1881.
 
2. The appellant as the complainant filed a petition of complaint under section 138 of the Negotiable Instrument Act, 1881 against the respondent No.1 stating inter alia, that the com­plainant and the accused are involved in share business and being closely known to each other the complainant gave a loan of Tk. 60,000,00/- to the accused who assured to reimburse the amount in no time and later issued two cheques in favour of the complainant dated 27.08.2000 one for Tk. 45,000,00/- and another for Tk.15,000,00/- and that the complainant presented the cheques on 10.02.2001 but the cheques being bounced he again presented the cheques on 25.02.2001 but still the cheques were returned unpaid on 26.02.2001 and then the complainant demanded the money sending a notice dated 10.03.2001 giving the accused 15 days time to make the payment but still no pay­ment being made the complaint was filed on 22.04.2001 and the learned chief Metropolitan Magistrate took cognizance and the accused appeared before the court and was released on bail and thus the proceeding being started the accused filed an application under Section 241A of the Code of Criminal Procedure pray­ing to discharge him but the learned Magistrate rejected the application and then the accused filed criminal Miscellaneous case No. 5518 of 2001 under Section 561A of the Code of Criminal Procedure praying to quash the pro­ceeding and the High Court Division by the impugned judgment and order made the Rule absolute quashing the proceeding and hence is this appeals.
 
3. In support of the appeal, Mr. Rokanuddin Mahmud, learned Counsel, has taken us through the materials on record including the impugned judgment and order passed by the High Court Division and submits that the cheques being presented for encashment firstly on 10.02.2001 and then on 24.02.2001 but the same being dishonored the complainant served notice on 10.03.2001 with in 15 days from the return of the cheques i.e. on 26.02.2001 and thus fulfilled the requirement of law.
 
4. He further submits that a cheques can be presented on more than one occasions for encashment, with in 6 months from the date of its issuance and the complainant was, therefore entitled to present the cheques in question as many times as thought necessary with in the aforesaid period of 6 months and by serving a notice within 15 days from the date when the cheques were returned last, the requirement of law has been fulfilled. He challenged seriously the observation of the High Court Division that the cheques being returned unpaid for the first time on 11.02.2001 and no legal notice being sent upon the accused with in 15 days from the date of receipt of the information of the return of the cheques on 11.02.2001. The proceeding against the accused being not maintainable under Section 138 of the Act the same was liable to be quashed.
 
5. In support of the submissions the learned Counsel has referred to the decision in the case of Habibur Rahman Hawlader vs. State and another reported in 55 DLR (HCD) 199 which has been affirmed by the Appellate Division as reported in 53 DLR (AD) 111.
 
6. Mr. Amir-ul-Islam, learned Counsel, rep­resenting the respondent opposes the appeal and submits that for non compliance with the requirement of Section 138 (1) (b) and (c) of the Act no offence has been constituted or deemed to have been committed and as such as the pro­ceeding has correctly been quashed.
 
7. He further submits that taking cog­nizance of the alleged offence by the learned Magistrate has also been illegal inasmuch as the complaint was not made within one month of the date on which the cause of action arose under Clause (c) of proviso to Section 138 of the Act. More so the complainant failing to even mention the date of cause of action, if any, in the petition of complaint, question of taking cognizance does not arise.
 
8. In support of his submissions he refers to the decision in the case of SM Anwar Hossain Vs. Md. Shafiul Alam (chand) and another reported in 51 DLR (AD) 218.
 
9. We have considered the submissions and perused the materials on record. The High Court Division while quashing the instant pro­ceeding observed:
 
"In view of our discussions and the decisions as referred to in 51 DLR (AD) 218 and 53 DLR (AD) 111, it cannot but be said that legal notice was not served upon the accused petitioner within 15 days of the receipt of the information of return of the cheque. The cheque was first returned unpaid on 11.02.2001 and no legal notice was sent upon the accused petitioner within 15 days from the date of receipt of the information of return of the cheque on 11.02.2001 and as such the proceeding being found to be not strictly in accor­dance with the provision of section 138 (b) of the Negotiable Instrument Act the same is liable to be quashed."
 
10. The High Court Division thereby ignored the fact that the cheque was again pre­sented on 25.02.2001 and was returned unpaid on 25.02.2001.

To examine the propriety or there wise of the impugned judgment let us quote relevant portion of Section 138 of the Act as amended which runs as follows:- "138. Dishonour of cheque for insufficiency, etc. of founds 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 honors 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 thrice the amount of the cheque, or with both.
 
11. Provided that nothing contained in this section shall apply unless the cheque has been presented to the bank with a period of six months from the date on which it is drawn or with in the period of its validity, whichever is earlier.
 
"The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the ban regarding the return of the cheque as unpaid, and
 
The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in dew course of cheque, within fifteen days of the receipt of the said notice."
 
12. On perusal of the aforesaid provision it appears that the cheque is required to be pre­sented to the bank with in 6 months from which it is drawn. The holder of the cheque, therefore is at liberty to present the cheque on more than one occasion till it is honored/enchased with in 6 months from the date of drawing. The holder of the cheque is, therefore, not obliged to issue notice making demand for the payment of the amount with in 15 days of the receipt of the information by him from the bank regarding the return of the cheque on the very first occasion since he may present the cheque at times more than once within 6 months. He cannot be debarred from issuing notice to the drawer of the cheque on receipt of information of dishon­our of the cheque on the second or last occasion as the case may be. This view of ours finds sup­port in the case reported in 55 DLR (HCD) 199 where in it has been held-
 
"In our view, such a cheque may be presented to the bank more than once but the cheque must be presented to the bank within the period of six months from the date on which it is drawn or within the period of its validity. In the present case cheques were presented to the bank twice well within six months from the date it was drawn. In the instant case computation of 15 days for serving notice should be done from the date on which the cheques lastly returned by the bank, we find that both the cheques were lastly returned on 07.06.1999 and legal notice were served on the petitioner on 17.06.1999 and 21.06.1999 which are with in 15 days of the receipt of information of return. As such, we do not find any ille­gally in it."
 
13. As already stated, this decision has been affirmed by the Appellate Division in the case reported in 53 DLR (AD) 111. We, therefore, do not find eye to eye to the observation made by the High Court Division in the instant case while quashing the proceeding as the observa­tion made by the High Court Division as quot­ed above appears to be erroneous.
 
14. On the contrary we reiterate that if any cheque is presented to the Bank twice or on many more times, within six months from the date it was drawn, computation of the period for prosecution under section 138 of the Negotiable Instrument Act should be done from which the cheque is lastly returned.
 
15. There is however other side of the Coin. Under section 141 of the Act, it has been pro­vided that no court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing and such complaint is to be made with in one month of the date on which the cause of action arises under Clause (c) of the proviso to section 138. Under Section 138 (1) (c) we have found that nothing contained in the section shall apply unless the drawer of such cheque fails to make the payment of money to the payee within 15 days of the notice given by the holder of the cheque in writing.
 
16. It is on record that the cheque in ques­tion were returned for the first time unpaid on 11.02.2001 and then on 26.02.2001 for the 2nd time and the notice is said to have been issued by the complainant on 10.03.2001 and the com­plaint has been filed on 22.04.2001.
 
17. Mr. Amir-ul-Islam, learned Counsel, representing the respondent persistently sub­mits that in considering an application under Section 561A of the Code of Criminal Procedure it is to be seen as to whether the offence complained of has been disclosed at all and more so, in the instant case whether the petition of complaint disclosed any cause of action as required by section 138 of the Act and if not, taking cognizance of the offence being illegal the proceeding is liable to be quashed. Placing us the petition of complaint he submits that a statement has been made therein that a notice has been sent by post but there is nothing as to the date of receipt of the notice by the accused and there being no statement nor any material indicating- whether the accused at all received any notice and when, there has not arisen any legal cause of action. Referring to the petition of complaint he further submits that in the four comers of the petition of complaint there is nothing as to any date of arising cause of action and as such there being disclosure of no cause of action, no offence has been dis­closed as contemplated under the law to come with in the mischief of section 138 (1) of the Act.
 
18. In this connection he has referred to the decision reported in 51 DLR (AD) 218 wherein a proceeding under section 138 of the Act was quashed by the Appellate Division though the High Court Division rejected the application. He refers to paragraph 12 in the decision which reads as follows.
 
"Mr. Abdus Sobhan, learned Advocate for the complainant respondent, realiz­ing the legal position almost desperate­ly argued that there is no clear assertion in the petition of complaint as to when the notice for payment sent by the com­plainant was actually received by the appellant and, as such the countdown of 15 days has not yet begun for a cause of action to arise although it is true that the complainant became aware of the appellant's refusal to pay on 04.01.1996. If this argument of Mr. Sobhan is accepted then it has to be conceded also that the cause of action for filing a complaint has not yet arisen because 15 days will have to transpire from the date of receipt of the notice by the appellant. The complainant obvi­ously could not file the present com­plaint without the cause of action hav­ing arisen. The argument of Mr. Sobhan is apparently self defeating and the complaint cannot be saved in any case."
 
19. Taking clue from the aforesaid observa­tion made by this division Mr. Amir-ul-Islam submits that there being no assertion in the peti­tion of complaint as to when the notice for pay­ment sent by the complainant was actually received by the accused and, as such, the count­down of 15 days not yet beginning for a cause of action, the petition of complaint, in the instant case, suffers from patent illegality and on the face of the petition of complaint, even if it is accepted in its entirety, it does not consti­tute any offence or no offence shall be deemed to have been committed as alleged and as such it would be manifestly unjust to allow process of the court to continue and would in fact be an abuse of process and, therefore the proceeding is liable to be quashed.
 
20. After considering the facts and circum­stances and the law on the point we find sub­stance in the submissions made on behalf of the respondent .In view of the non disclosure of the date as to receipt of notice by the accused and failure to mention any legal cause of action in the petition of complaint, we are of the view that the proceeding cannot be allowed to contin­ue and as such it is liable to be quashed. In view of our discussion made above the ultimate order of the High Court Division in quashing the pro­ceeding is found to be sustainable.
 
21. In this view of the matter we do not find substance in this appeals and the appeal is accordingly dismissed.
 
Ed.