Appellate Division
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin
Chowdhury J
Ahmed Lal Mia……..
……. Petitioner
vs
State and another …….. Respondents*
Judgment October 3rd, 2013.
Negotiable Instruments Act (XXVI of 1881)
Section 138
The cheque was dishonoured with the endorsement “payment stopped by the drawer”, a clear prima-facie case of the commission of the offence punishable under section 138 of the Act, has been made out against the accused. ….. (8)
Code of Criminal Procedure (V of 1898)
Section 222
Merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires. . .. (8)
Mvi Md Wahidullah. Advocate-on-Record-For the Petitioner.
Zainul Abedin Advocate-on-Record-For Respondent Nos. 2-4.
Judgment
Md Abdul Wahhab Miah J: The accused has filed this petition for leave to appeal against the judgment and order dated the 21st day of May, 2012 passed by a Division Bench of the High Court Division in Criminal Revision No.348 of 2012 discharging the Rule.
2. Facts necessary for disposal of this petition are that the accused, petitioner herein, filed a revision application before the High Court Division under section 439 read with section 435 of the Code of Criminal Procedure (the Code) being Criminal Revision No.348 of 2012 for setting aside two orders No.7 dated 26-2-2012 and No.4 dated 29-11-2011 (as arranged in the cause title of the revision application) passed by learned Metropolitan Sessions Judge. Chittagong in Sessions Case No.2054 of 2011. The said sessions case arose out of a petition of complaint filed by respondent No.2 as complainant before the Chief Metropolitan Magistrate, Chittagong. alleging the commission of an offence punishabe under section 138 of the Negotiable Instruments Act. 1881 (the Act, 1881). In the petition of complaint, it was alleged, inter alia, that the accused issued a cheque on 16-1-2011 for an amount of Taka 50,00,000 in favour of the complainant drawn on City Bank Limited. O.R. Nizam Road Branch, Chittagong bearing Cheque No.16161317. The cheque was presented for encashment in the bank on 17-1-2011, but the same was dishonoured with the endorsement “payment stopped by drawer.” Then the complainant issued the statutory notice upon the accused on 2-2-2011 by registered post asking him to make the payment of the amount of the dishonoured cheque which was duly received by him on 6-2-2011, but he failed to make the payment of the amount of the dishonoured cheque within the statutory period and thereafter, the complainant filed the petition of complaint. The concerned Metropolitan Magistrate on examination of the complainant under section 200 of the Code found prima facie case against the accused and took cognizance of the offence against him under section 138 of the Act, 1881. The case being triable by a Court of Sessions, the case records were transmitted to the Court of Metropolitan Sessions Judge, Chittagong who took cognizance of the offence against the accused under section 138 of the Act, 1881 and the case was registered as Metropolitan Sessions Case No.2054 of 2011. The learned Metropolitan Sessions Judge by his order dated 29-11-2011 framed charge against the accused under section 138 of the Act, 1881 and fixed the next date for examination of witnesses. It further appears from the record that on behalf of the accused, an application was filed on 12-1-2012 for discharging him from the case and alternatively to stay the further proceedings of the sessions case till disposal of Money Suit No. 13 of 2011 pending in the Court of the Joint District Judge, Third Court, Chittagong filed by him. The learned Metropolitan Sessions Judge by his order dated 26-2-2012 rejected the prayer for discharging the accused from the case, but did not pass any order on the alternative prayer. And this order was also challenged before the High Court Division as stated hereinbefore.
3. From the impugned judgment and order, it appears that at the time of hearing the Rule, the learned Advocate who appeared for the accused before the High Court Division made a candid submission to the effect that he had instructions not to press the Rule so far as it relates to the order passed on 26-2-2012 and accordingly, the High Court Division decided only the propriety of the order dated 29-11-2011 passed by the learned Metropolitan Sessions Judge, Chittagong framing charge against the accused under section 138 of the Act, 1881. We consider it better to quote the relevant portion of the order passed by the High Court Division in that respect, ‘During the course of submission Mr Mohammad Arshadur Rouf the learned advocate appearing on behalf of the accused-petitioner submits that he has instruction not to press the Rule so far it relates to the order passed on 26-2-2012 and accordingly such portion of the Rule can be discharged for non-prosecution leaving other portion alive so far it relates to the impugned order passed on 29-11-2011 of framing charge for committing the offence punishable under section 138(1) of the Negotiable Instruments Act, 1881.”
4. Mvi. Md Wahidullah, learned Advocate on-Record, appearing for the accused-petitioner before this Division again tried to assail the order dated 26-2-2012 by submitting that the accused already filed a money suit against the complainant being Money Suit No. 13 of 2012 claiming a sum of Taka 33,97,000 in connection with the dishonoured cheque and also for declaration that he (the complainant) was not entitled to encash the cheque given by him on 16-1-2011, so in all fairness, the further proceedings of the Sessions case in question ought to have been stayed till the disposal of the money suit which is till pending, but the learned Sessions Judge did not pass any order on the prayer. Mvi. Md Wahidullah has further submitted that the Metropolitan Sessions Judge, Chittagong acted illegally in framing charge against the accused under section 138 of the Act, 1881 as he did not give any hearing to the accused and thus no chance to place his case as provided in sections 265C and 265D of the Code and also without applying his judicial mind to the materials on record and therefore, the impugned judgment and order needs to be interfered with by this Division by giving leave.
5. Mr Zainul Abedin, learned Advocate-on-Record, entering caveat on behalf of the complainant-respondent, however, supported the impugned judgment and order submitting that a clear case of the commission of offence within the meaning of section 138 of the Act, 1881 having been made out in the petition of complaint, the Metropolitan Sessions Judge rightly framed charge against the accused under the said section of the Act, 1881, the High Court Division rightly refused to interfere with the same and therefore, no interference is called for with the impugned judgment and order and the leave petition be dismissed.
6. Since the point has again been raised on behalf of the accused before this Division that a money suit being No.13 of 2012 has already been filed by him against the complainant claiming a sum of Taka 33,97,000 and also for a declaration that he (the complainant) is not entitled to encash the dishonoured cheque, in all fairness, the proceedings of the sessions case in question should have been stayed by the Metropolitan Sessions Judge till disposal of the said money suit, we are inclined to dwell upon the point and answer the same though the point was abandoned at the time of hearing of the Rule before the High Court Division.
7. From the facts as disclosed in the petition of complaint, it appears that a cheque was issued by the accused on 16-11-2011 in favour of the complainant for an amount of Taka 50,00,000 and the same having been presented was dishonoured on 17-1-2011. The statutory notice as required by clause (b) of the proviso to section 138 of the Act, 1881 asking the accused to make the payment of the amount of the dishonoured cheque was given on 2-2-2011 which was received by him on 6-2-2011, the accused failed to make the payment of the dishonoured cheque and then the petition of complaint was filed on 20th of March, 2011. The money suit in question was filed on 24-3-2011, i.e. after 3(three) days from the date of filing the petition of complaint and much after the cheque was dishonoured. The moment, the cheque was dishonoured with the endorsement “payment stopped by drawer”, the offence under section 138 of the Act, 1881 was complete, but the cause of action to file the petition of complaint arose after the accused had failed to make the payment of the amount of the dishonoured cheque after the issuance of the notice under clause (c) of the proviso to section 138 thereof and that has nothing to do with the money suit filed by the accused and a case under section 13 8 of the Act, 1881 cannot be stayed on the ground of pendency of a money suit filed by the accused and if such a course is allowed to be practised then the whole purpose of the law shall be frustrated. Therefore, we find no substance in the first submission of Mvi Md Wahidullah.
8. From the order dated 29-11-2011, it appears that the charge was framed against the accused in presence of his learned Advocate and also the Public Prosecutor. It is true that on that day, the prosecution as well as the accused prayed for time, but the Court refused the prayer and then framed charge. But that does not show or indicate that the learned Advocate for the accused was not heard or in other words, he was not given any opportunity to make his submission and place the materials before framing the charge. It is also necessary to keep on record that the learned Metropolitan Sessions Judge clearly noted in the order dated 29-11-2011 that no application was filed on behalf of the accused for discharging him from the case. In framing charge in a case under section 138 of the Act, 1881, the only material to be looked into and considered by the Court concerned is the petition of complaint. A mere reading of the petition of complaint in the instant case (the petition of complaint has been incorporated in the paper book) shows that all the necessary facts for constituting an offence under section 138 of the Act, 1881, such as: presentation of the cheque within 6(six) months from 16-1-2011 (the cheque was drawn on this date), the dishonourment of the cheque on 17-1-2011, notice given to the drawer (the accused) within the statutory period asking him to make the payment of the amount of the dishonoured cheque, failure of the accused to make the payment within thirty days from the date of receipt of the notice as mandated in clauses (a) (b) and (c) to the section, have been stated. And lastly the petition of complaint was filed within thirty days from the date of failure of the accused to make the payment of the amount of the dishonoured cheque to the complainant, the payee. As already stated hereinbefore, the cheque was dishonoured with the endorsement “payment stopped by the drawer”, so a clear prima facie case of the commission of the offence punishable under section 138 of the Act, 1881 has been made out against the accused in the petition of complaint. The learned Metropolitan Sessions Judge rightly framed charge against the accused under section 138 of the Act, 1881. However. we like to observe that merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires.
9. In view of the above, no interference is called for with the impugned judgment and order.
The leave petition is dismissed.
