Tuesday, May 21, 2019 | ePaper

Proceedings should not be stifled

Case shall be considered by facts and circumstances

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High Court Division :
(Criminal Miscellaneous Jurisdiction)
Sheikh Abdul Awal  J } Abdul Awal (Md)…............    
(Bhishmadev      } …………Accused-Petitioner
Charabortty    J }         vs
Judgment         } State and another ………
January 7th, 2019        } ………………Opposite-Parties

Negotiable Instruments Act (XXVI of 1881)
Section 138
The proposition of law is well settled that on the basis of defence plea or materials, the proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial.
The accused-petitioner on 9-5-2017 issued a cheque of Taka 30 Lac in favour of the complainant and thereafter, the complainant placed the said cheque in Shahjalal Islami Bank, Eskaton Branch, Dhaka for encashment on 14-5-2017 although the said cheque was dishonoured and thereafter, the complainant brought the matter to the notice of the accused-petitioner by sending a notice dated 1-6-2017 and on getting the notice the accused-petitioner requested the complainant to place the cheque on 11-6-2017 for encashment and accordingly, on good faith, the complainant placed the said cheque on 11-6-2017 for encashment and again the said cheque was returned unpaid. The matter did not end here.  Again on pretext the accused-petitioner requested the complainant to place the cheque on 6-9-2017 for encashment and accordingly, on good faith the complainant placed the said cheque for encashment and the said cheque was returned with a remark "account closed/ dormant/blocked" and thereafter, complainant finding no other alternative way filed this case under Section 138 of the Negotiable Instrument Act……………… (6 & 4)
Sheikh Atiar  Rahman,  Advocate-For the Accused-Petitioner.
Md Fazlur Rahman Khan, DAG-For the State.
Sheikh Abdul Awal J : In this application under Section 561A of the Code of Criminal Procedure, the accused-petitioner sought for quashing the proceeding of Sessions Case No. 1876 of 2018 arising out of CR Case No. 1114 of 2017, under Section 138 of the Negotiable Instrument Act, 1881 now pending in the Court of the learned Additional Sessions Judge, 1st Court, Narayangonj.
2. Mr Sheikh Atiar Rahman, the learned Advocate appearing for the accused-petitioner submits that the impugned proceeding under Section 138 of the Negotiable Instrument Act is a clear violation of the provision of Section 138 of the Negotiable Instrument Act inasmuch as in this case the complainant issued 3 times legal notice asking to pay the cheque's amount and as such, the prolongation of the case amounts to an abuse of the process of the Court and the impugned proceeding is liable to be quashed. This is the only ground urged by the learned Advocate for the petitioner. Mr Sheikh Atiar Rahman, the learned Advocate to fortify his argument has relied on the decision reported in 14 BLC 66.
3. Heard the learned Advocate and perused the application along with other papers including the petition of compliant as filed thereto.
4. On going through the petition of complaint, it appears that the accused-petitioner on 9-5-2017 issued a cheque of Taka 30 Lac in favour of the complainant and thereafter, the complainant placed the said cheque in Shahjalal Islami Bank, Eskaton Branch, Dhaka for encashment on 14-5-2017 although the said cheque was dishonoured and thereafter, the complainant brought the matter to the notice of the accused-petitioner by sending a notice dated 1-6-2017 and on getting the notice the accused-petitioner requested the complainant to place the cheque on 11-6-2017 for encashment and accordingly, on good faith the complainant placed the said cheque on 11-6-2017 for encashment and again the said cheque was returned unpaid. The matter did not end here. Again on pretext the accused-petitioner requested the complainant to place the cheque on 6-9-2017 for encashment and accordingly, on good faith the complainant placed said cheque for encashment and the said cheque was returned with a remark "account closed/ dorrnant/blocked" and thereafter, complainant finding no other alternative way filed this case under Section 138 of the Negotiable Instrument Act on 8-11-2017.
5. From the above, it transpires that the accused-petitioner on various pretext again and again requested the complainant to place the cheque before the bank and accordingly the complainant on good faith placed the cheque in bank for 3 times for encashment but the cheque in question was returned unpaid in each time. The case as revealed from the petition of complaint that the complainant issued 3 legal notices time to time lastly on 13-9-2017 as per request of the accused petitioner on good faith and the cheque in question was bounced all along.
6. In the facts and circumstances of the case and law bearing on the subject, it is difficult to hold that there is any legal bar of the impugned proceeding or the continuation of the impugned proceeding will amount to an abuse of the process of the Court. The contention as raised by the learned Advocate is a disputed question of fact to be ascertained at the trial on taking evidence and when evidence is required to settle the dispute, the proceeding cannot be quashed.
The proposition of law is well settled that on the basis of defence plea or materials, the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial.
7. Taking into consideration all of these aspects of the case as revealed from the materials on record, we are of the view that the petition of complaint undoubtedly discloses that the accused petitioner is liable for the offence under Section 138 of the Negotiable Instrument Act and, as such, the question of quashing the proceeding does not arise at all. In framing charge under Section 138 of the Negotiable Instrument Act, the learned Additional Metropolitan Sessions Judge, 1st Court, Narayangonj did not commit any illegality whatsoever. Whether a proceeding under Section 561A of the Code Criminal Procedure is to be quashed depends upon the facts of the case itself.
7. The principles as enunciated in the cited decision have no manner of application in the facts and circumstances of the instant case in as much as facts of the cited case are quite distinguishable from the facts of the present case. Every case shall be considered in the facts and circumstances of that case only. Therefore, we do not find any merit in this application.
8. In the result, the application is rejected summarily. 

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