Sunday, November 19, 2017 | ePaper

Circumstances leading to presumed delivery of letters, notice or summon

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(From previous issue) :
43. In the case of Md Kamal Uddin @ Md Kamal Ahmed vs Md Mezbah Uddin reported in XI ADC 2014, it is held that:-
"A criminal proceeding shall not be stifled before trial, when there was a prima  facie case for going to the trial........
"With regard to the submission that the Assistant Sessions Judge does not have jurisdiction to hear the matter, we may refer to the provisions of the Code of Criminal Procedure (the Code) which provides in Section 6 that, apart from the Supreme Court and Courts constituted under any other law, there shall be two classes of criminal courts, namely courts of Sessions and Courts of Magistrate. An Assistant Sessions Judge or Joint Sessions Judge as mentioned in Section 9(3A) of the Code is also a Judge of the Court of Sessions. Section 141(c) provides that no court inferior to that of Court of Sessions shall try any offence punishable under Section 138.
The Section does not say that any case under Section 138 may not be tried other than by the Sessions Judge. The Court of Assistant Sessions Judge is also a Court of Sessions and, as such, there is no illegality in the trial continuing before the Court of Assistant Sessions Judge. Moreover, we may refer to a decision of this Division in the case of MK Bazlur Rahman vs Md Johurul Haque reported in VI ADC (2009), 809, where this Division affirmed the judgment of the High Court Division.
44. In the case of Abdul Alim vs Biswajit Dey reported in 59 DLR 236 where it is held that:-
"The submissions made is not sustainable either in law or on the facts of the given case. The offence under Section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and complainant can choose anyone of the courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a bank at Chittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed."
45. In the case of Sarwar Hossain Moni (Md) vs State reported in 66 DLR (AD) 283 where our apex court held that:-
''It is true that in the judgment sought to be reviewed, there has been no detailed discussions as to the point raised before the High Court Division that the respective petition of complaint having been filed before expiry of the statutory period as stipulated in clause (c) of the proviso to Section 138(1) of the Act, 1881, was barred by law, this division having affirmed the judgment and order passed by the High Court Division which took the view that though the respective petition of complaint was filed before expiry of thirty days from the date of receipt of the notice issued under clause (b) of the proviso to Section 138, was maintainable in law, in fact, gave the answer. Be that as it may, since in these review petitions, specific question has been raised to the above effect, we need to answer the same with reference 10 clause (c) of the proviso to Section 138 of the Act, 1881 read with Section 141 thereof."
46. On perusal of the application under Section 561A of the Code of Criminal Procedure and the counter affidavit filed by the opposite party No.2 and the citations as referred by the learned Advocate for the opposite party No.2. We find no merit in the submissions of the learned Advocate appearing for the petitioner on the contrary we find merit in the submissions of the learned Advocate appearing for the opposite party No. 2 and the citations as referred by the learned Advocate for the opposite party No. 2 are fully applicable in the facts and circumstances of the present case. We find no merit in these rules and, as such, both the rules are devoid of any substance.
47. In the result, both the rules are hereby discharged without any order as to cost. The order of stay as granted at the time of issuance of the rule is hereby re-called and vacated. The learned Joint Metropolitan Sessions Judge, 7th Court, Dhaka is hereby directed to dispose of the CR Case No. 321 of 2011 now pending in the 7th Court of Joint Metropolitan Sessions Judge, Dhaka expeditiously as far as practicable preferably within six months from the date of receipt of a copy of this judgment positively.
The office is hereby directed to transmit a copy of this judgment to the concern Court forthwith for information and necessary action.
(Concluded)

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