Sultana Akter Vs. The State and another, (A. K. M. Asaduzzaman, J.)

Case No: Criminal Miscellaneous Case No. 18246 of 2018

Judge: A. K. M. Asaduzzaman, J And S. M. Mozibur Rahman, J.

Court: High Court Division,

Advocate: None appears,

Citation: 2019(1) LNJ

Case Year: 2019

Appellant: Sultana Akter

Respondent: The State and another

Subject: Negotiable Instruments Act

Delivery Date: 2019-12-04

 HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

A. K. M. Asaduzzaman, J

And

S. M. Mozibur Rahman, J.

 

Judgment on

31.03.2019

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Sultana Akter

.  . . Petitioner

-Versus-

The State and another

. . . Opposite Parties

Negotiable Instruments Act (XXVI of 1881)

Section 140

Code of Criminal Procedure (V of 1898)

Section 561A

In view of the terms as used by the legislature “it is proved” it is clear that mere statement in the petition of complaint, it is not enough to hold a person, responsible of the Company or the other manager, secretary or other officer of the Company, guilty, it needs to be proved by way of evidence. In other wards, so long evidence is not adduced against those persons, they cannot be held guilty. Determination of a person having consent or connivance of, or is attributed to or any negligence on his part during the business of a Company or not is a disputed question of fact and can only be determined upon taking evidence during trial. This question of fact obviously out of the ambit of the Jurisdiction of the High Court Division, conferred under section 561A of the Code of Criminal Procedure. There is no scope to decide the said question of fact, sitting under Jurisdiction of section 561A of the Code of Criminal Procedure.”                        . . . (12)

None appears.

. . . For the petitioner.

Mr. Md. Nasir Shikder, Advocate

. . . For the Opposite party No.2.

Mr. Md. Bashir Ullah, D.A.G.

…For the State.

JUDGMENT

A.K.M.Asaduzzaman, J: This Rule was issued calling upon the opposite parties to show cause as to why the proceeding of Special Sessions Case No. 53 of 2017 arising out of C.R. Case No.1996 of 2009 (Dakkhin) under section 138 of the Negotiable Instrument Act, 1881, now pending in the Court of Special Sessions Judge, Court No.7, Dhaka should not be quashed.

2.             Facts relevant for disposal of the rule are that the opposite party No.2 as complainant filed a petition of complaint, alleging inter alia, that the accused petitioner availed loan facilities from the complainant opposite party No.2. The accused petitioner’s company failed to adjust his loan liabilities gave cheque to the complainant. Thereafter the complainant deposited the said cheque for encashment but the same were dishonored due to “Insufficient of fund” on 26.01.2009. The complainant sent legal notice to the accused on 02.02.2009 but the accused failed to adjust the same and hence the instant case.

3.             In view of the said petition of complaint, the learned Magistrate took cognizance of the case against the accused petitioner under section 138 of the Negotiable Instruments Act, 1881 and the case was transmitted to the Court of learned Special Sessions Judge, Court No.7, Dhaka for trial.

4.             The petitioner voluntarily surrendered before the court below and obtained bail and thereafter filed an application under section 561A of the Code of Criminal Procedure and obtained the instant Rule along with order of stay.

5.             From reading of the rule petition it appears that the petitioner obtained rule on the ground that there is no averment in the petition of complaint that the petitioner is directly involved in this case even than he has been shown as an accused in the case. The impugned proceeding is thus nothing but an abuse of the process of the Court.

6.             None appears for the petitioner although the matter is appearing in the list with the name of the learned advocate for the petitioner.

7.             Heard the learned advocate for the opposite party No.2 and perused the documents annexed to the application.

8.             The learned Advocate appearing for the Opposite party No.2 submits that Sub-section 2 of section 140 of the Negotiable Instrument Act stated that if it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence under the Negotiable Instrument Act. In view of the above provision since these contentions are matters of fact and are required to be proved after taking evidence, at the time of trial by the trial court, the rule contains no merit, it may be discharged.

9.             Heard the learned advocate for the opposite party and perused the documents annexed to the application.

10.         The contention as been raised in the rule petition is matter of facts.

11.         Moreover we have already taken a view after analysing the provision of 138 and 140 of the Negotiable Instruments Act that:-

         “In the first part of Section 140 of the Negotiable Instruments Act contain the offence committed by the person, who are responsible as well as in charge of the company at the time of commission of offence, shall be deemed to be guilty. But the 2nd part of section 140 of the Negotiable Instruments Act provides that any director, manager, secretary or other officer of the company would be held guilty of that offence if at that time they had active part of company as well as consent   or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company.

12.         Moreover in view of the terms as used by the legislature “it is provedˮ it is clear that mere statement in the petition of complaint, it is not enough to held a person, responsible of the Company or the other manager, secretary or other officer of the Company, guilty, it needs to be proved by way of evidence. In other wards, so long evidence is not adduced against those persons, they cannot be held guilty. Determination of a person having consent or connivance of, or is attributed to or any negligence on his part during the business of a Company or not is a disputed question of fact and can only be determined upon taking evidence during trial. This question of fact obviously out of the ambit of the Jurisdiction of the High Court Division, conferred under section 561A of the Code of Criminal Procedure. There is no scope to decide the said question of fact, sitting under Jurisdiction of section 561A of the Code of Criminal Procedure.”

13.         Be that as it may, we find there is nothing to interfere in this Rule.

14.         In the result, the Rule is discharged.

15.         The order of stay granted earlier is hereby recalled and vacated.

16.         Communicate the judgment at once.

Ed.