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Accused be allowed to produce defence evidence

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  High Court Division :
Criminal Miscellaneous Jurisdiction)
Md Emdadul Huq J
FRM Nazmul Ahasan J
Shariful Haque (Md)
…………………….Petitioner
 vs
State represented by the Deputy Commissioner, Dhaka & another………
....... Opposite Parties*
Judgment
December 14th, 2017
Negotiable Instruments Act (XXVI of 1881)
Section 140
The trial Court should amend the charge by incorporating a reference to 140 of the Act, with further statement that the accused issued the cheque as an office bearer of the Company and that he is liable to be prosecuted. The accused should be allowed to produce his defense evidence in accordance with law.
Negotiable Instruments Act (XXVI of 1881)
Section 138
The accused is at liberty to take his defense plea in the trial and to produce supporting evidence in accordance with law. . ..... ( 17)
Code of Criminal Procedure (V of 1898)
Section 227
Charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge. . ..... (16)
Ziaul Huq-For the Petitioner.
Mohammad Shahidullah with Md Shamsul Islam, Advocates-For the Opposite-Party No.2.
Judgment
Md Emdadul Huq J : Upon an application under Section 561 A of the Code of Criminal Procedure, 1898 (shortly Cr PC) a Rule was issued by this Court about quashment of the proceedings of Sessions Case No, 9285 of 20 16 arising out of CR Case No, 1204 of '2015 instituted 'under Section 138 of the Negotiable Instruments Act, 1881 (shortly the Act, 1881), now pending in the Court of Special Sessions Judge and Paribesh Appeal Adalat, Dhaka,
2. By the Rule issuing order,. further proceedings of the said case was also stayed.
3. Facts relevant for disposal of the Rule, in brief, are as follows:-
The opposite party No, 2 instituted the above noted CR Case by filing a petition of complaint. He alleges that, in connection with an agreement for construction of a building on his land, the accused petitioner Md Shariful Haq, Managing Director, (IDDL) issued two cheques dated 20-2-2015 and 20-3-2015 in favour of' the complainant for payment of Taka 2,00,000 (two lac) and Taka 7,50,000 (seven lac fifty thousand). But both the cheques were dishonored on 6-8-2015 due to insufficient fund at the account of the accused petitioner. So, the complainant issued a legal' notice dated 8-8-2015 and it was received by the accused petitioner on 23-8-2015. But the accused petitioner did not make any arrangement for payment of the two cheques : Lastly the complainant filed the said CR case alleging the offence under 138 of the Act, 1881.
4. The case was eventually sent to the Court of Sessions and the learned Special Sessions Judge and  cwi‡ek Avcxj Av`vjZ by order dated 21-11-2016, framed a charge against the accused petitioner under Section 138 of the Act, 1881.
5. Thereafter the accused petitioner filed this case and obtained a Rule and stay.
6. At the hearing Mr Md Ziaul Huq, the learned Advocate for the accused petitioner submits that the cheque was issued under the signature of the accused petitioner in the capacity of the Managing Director of a limited company and therefore the case cannot proceed without impleading the Company as required by Section 140 of the Act, 1881.
7. Mr Huq next submits that the trial Court committed an error of law by framing a charge only against the accused petitioner under Section 138 of the Act, 1881 without reference to section 140.
8. Mr Huq, next submits that the complaint contains an allegation of sale of the apartment at a price of 35,00,000 but the same has been actually sold out at Taka 30,01,000 which is clearly stated in the document of transfer (Annexure-"C" series) and therefore the petitioner should be allowed to adduce evidence on that aspect.
9. Upon perusal of the materials on record, we find that the petition of complainant (Annexure-A) contains allegation about the commission of an offence under Section 138 of the Act, 1881 with reference to the issuance of the two cheques by the accused petitioner as the Managing Director of IDOL and the date of dishonor thereof and the issuance of a legal notice and ultimate filing of the CR Case.
10. The above noted facts prima facie disclose the offence under Section 138 of the Act. 1881 and compliance with the requirements of that section.
11. The photocopies of the two cheques (Annexure-2-series) further reveal that the cheques were issued by the accused petitioner containing a seal stating the name of a company named MIS. Ingress Design & Development Ltd and the designation of the drawer as Managing Director.
12. But the said company has not been impleaded as an accused. So the issue is whether the case can proceed without impleading the Company.
13. According to the majority decision of the Appellate Division in the case of Eusuf Babu vs State reported in 68 DLR (AD) 298, (para-8-12) and further affirmed in the Criminal Petition for Leave to Appeal No-485 of2010, the drawee of a dishonored cheque has an option to implicate the company and the responsible office bearer of the company or both. It was also held by the Appellate Division in those cases that the drawee has also the option of impleading only the responsible office bearer of the company and that non-impleading the company does not render the case liable to be vitiated or quashed.
14. So, the objection raised by the accused petitioner on the ground of non-impleading the company as a co-accused is not acceptable to us. The complainant has lawfully implicated only the Managing Director who alone signed the cheque and it is lawful for prosecuting him alone.
15. With regard to reference to Section 138 only in the charge framing order we hold that the substantive penal provision is Section 138 and that Section 140 is a supplementary provision. Omission of section 140 in the complainant or in the charge order does not render the case to liable be quashed.
16. According to Section 227 Cr PC the charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge by mentioning Section 140 of the Act, 1882.
17. The accused petitioner is at liberty to take his defense plea in the trial and to produce supporting evidence in accordance with law.
18. We find no merit in the Rule and it is liable to be discharged with the follows observation.
19. The trial Court should amend the charge by incorporating a reference to 140 of the Act, 1881 with a further statement that the accused petitioner issued the cheque as an office bearer of the Company and that he is liable to be prosecuted. The accused petitioner should be allowed to produce his defense evidence in accordance with law keeping in view of the above observation.
20. The order or stay granted earlier by this Court stands vacated.
21. The learned Special Sessions Judge and Paribesh Appeal Adalat, Dhaka is directed to proceed with the Sessions Case No. 9285 of 2016 and to dispose of the same expeditiously in accordance with law.
Send at once a copy of the judgment and order to the said Court.

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