(From previous issue) :
12. We also find that, the Appellate Division in Criminal Appeal Nos. 07-22 of 2011 as well as the provisions of law, viz sub-section (2) of Section 140 of the Negotiable Instrument Act, 1881, clearly make a proceeding maintainable even if the company, on whose account the dishonoured cheque was drawn, has not been impleaded as one of the co-accused in a case filed under Section 138(1) of the Act.
13. We have gone though the judgments reported in (2012) 5 SCC 661 and (2014) 10 SCC 373. Sub-section (2) of Section 140 has not at all been discussed in the aforesaid two judgments by the Supreme Court of India (SCI). We are unable to regard these two judgments having no persuasive value at all, while, as per provision of Article 111 of the Constitution of the People’s Republic of Bangladesh, the judgment passed by the Appellate Division is binding on us.
14. Besides, in a case under SCI jurisdiction, reported in [1996] by Comp LJ 233 (SC) = [1997] 89 Camp Case 262 (SC),. Delhi Development Authority vs Shipper Construction Co. (P) Ltd, it has been held by the Supreme Court of India that, where it is found that a corporate character has been used for committing illegalities and for defrauding people, corporate veil can be lifted with a view to rendering full justice to affected parties (emphasis added)
15. As regards the decision reported 1 MLR (AD) 106 we find that this is a case’ regarding Administrative Tribunal and has no manner of relevance to the instant case.
16. We have also taken into consideration the submission of the learned Advocate appearing for the accused-petitioners that, no specific averment has been made as to who of the accuseds was in charge of running or managing the affairs of the company. On this ground, our considered view is that, it need not be emphasized that a company cannot work without the board of directors. The accused-petitioners are, respectively,’ the Managing Director, Chairman, and the Director. Their presence is necessary to form the quorum of the meetings of the board of directors as well as for adopting any resolution by the board of directors, for operating the accounts of the company, for entering into any deal with any other party as well as for running day to day business of the company, subject to their supervision. As such, apparently they are active party in managing the affairs of and operation the business of the company. Companies Act, Section 95, requires that the Board must sit at least 4(four) times in each year. This also proves the active participation of accuseds, as required by law, in running the affairs of the company. The board decides the date of and holds the AGM and EGM etc too. The accused persons being the MD, Chairman and Director their participation in running and managing the affairs of the company hardly needs any further proof, although the accused petitioners one entitled to adduce evidence at the time of hearing of the case, before the trial Court, on this issues.
17. As regards another submission of the petitioner, we should make it clear that, neither the NT Act, 1881 nor the CrPC. 1898. provides any particulars to be stated in a complaint petition or in an FIR (pleadings), as provided in Order 7 and 8 of the Code of Civil Procedure, 1908, as to what particulars a plaint or a written statement shall contain. Hence, we find the submission of the learned advocate for the accused-petitioner is devoid of any substance and suffer from serious misconception about the pleadings in criminal cases.
18. In view of the deliberation recorded above, we do not find any merit in this Rule. We find substance in the submission of the learned advocate of the complainant OP No: 2, that the petitioner has put the complainant OP No.2 to serious financial hardship, put their business to the verge of ruination and caused severe mental agony due to uncertainty about getting speedy trial and relief in the NI Act case, for which, he submits, exemplary cost should be imposed upon the petitioners, upon considering the face value of this dishonoured cheque as well as the delay and suffering caused by resorting to dilatory tactics by the accused-petitioners.
19. Before parting of, we should bring to the notice of Bangladesh Law Commission and or the Law Ministry that this type of cases are being filed in bunches on frivolous grounds’ mainly because, so far we understand, that the term of imprisonment has been kept maximum I (one) year, whether the cheque is for Taka 5(five) lac or for Taka 5 (five) crore. Therefore the term of imprisonment is required to be reconsidered according to the amount of the cheque. On the other hand, the cheque involves money to be paid to the payee or beneficiary of the cheque. Therefore provision may be made, by inserting a new Section 138B, for substitution of parties, so that a case filed under Section 138 of the Negotiable Instrument Act, 1881, shall not abate even if either the complainant or the accused dies, though the heirs of a deceased accused shall not be subjected to corporal punishment to realize the fine that may be imposed, as we find in Section 34(2) of Artha Rin Adalat Ain, 2003, in respect of substituted heirs. In a case under N1 Act, 1881, where the amount due under the cheque is not secured by any mortgage or pledge then the drawer’s moveable and immovable properties should be liable to attachment and the bank accounts to be freezed. Provisions may be made to that effect. Otherwise, the intent of the legislatures to secure beneficial interest of the payee or a ‘holder in due course’ as well as the entire proceeding is bound to become, in maximum cases, a mere futile exercise. Besides, as a Bench hearing criminal matters, we find that the trial Courts, almost in 100% cases, are granting bail mechanically, as if a routine, without considering the amount due under the cheque and the chance of jumping the bail. Besides, a lot of petitions under Section 561 A CrPC are moved without impleading the beneficiary of the cheque/the complaint as party to the proceeding. Appropriate provisions may be made to secure justice to the aggrieved and to stop indiscriminate granting of bail without it all considering the chance of absconsion, or tampering with the evidence.
20. In view of the deliberation recorded above, we do not find any merit in this Rule and the Rule is liable to be discharged with cost.
21. In a case under Section 138(1) of the Negotiable Instruments Act, 1881, the offence is not deemed to have been committed against the state. The proceeding is initiated by the ‘payee’, or a ‘holder in due course’, who has proprietary right and interest in the property of the dishonoured cheque. The state is not a necessary party, though it may be a property party in such a case. NI Act case is unlike a case filed under Penal Code etc. This distinction will be more clear from the fact that, for preferring appeal against the judgment and order of sentence passed under NI Act, not less than 50% of the amount due under dishonoured the cheque has to be deposited in the trial court, unlike in the case of preferring another appeal against conviction. In a case under NI Act, cost may be awarded to the aggrieved party for causing financial hardship, leading a person or a family to the verge of ruination, for harassment and inflicting mental agony on frivolous grounds or by resorting to dilatory tactics or on issues of law already settled by the Appellate Division, i.e. when the accused- petitioner does not come in clean hands for seeking justice, but with collateral purpose.
Order
In the result the Rule is discharged. The petitioner is directed to pay as cost Taka 2,50,000 to the complainant, within 30(thirty) days of drawing up of this judgment and order.
Let a copy of this judgment be sent to the trial Court and the trial Court is directed to proceed expeditiously for disposal of the case pending before it.
Let another copy of this judgment be sent to the Hon’ble Chairman, Bangladesh Law Commission, so that the Commission may take into notice the observation made in paragraph 18, herein above and may do the needful out of their wisdom.
(Concluded)
12. We also find that, the Appellate Division in Criminal Appeal Nos. 07-22 of 2011 as well as the provisions of law, viz sub-section (2) of Section 140 of the Negotiable Instrument Act, 1881, clearly make a proceeding maintainable even if the company, on whose account the dishonoured cheque was drawn, has not been impleaded as one of the co-accused in a case filed under Section 138(1) of the Act.
13. We have gone though the judgments reported in (2012) 5 SCC 661 and (2014) 10 SCC 373. Sub-section (2) of Section 140 has not at all been discussed in the aforesaid two judgments by the Supreme Court of India (SCI). We are unable to regard these two judgments having no persuasive value at all, while, as per provision of Article 111 of the Constitution of the People’s Republic of Bangladesh, the judgment passed by the Appellate Division is binding on us.
14. Besides, in a case under SCI jurisdiction, reported in [1996] by Comp LJ 233 (SC) = [1997] 89 Camp Case 262 (SC),. Delhi Development Authority vs Shipper Construction Co. (P) Ltd, it has been held by the Supreme Court of India that, where it is found that a corporate character has been used for committing illegalities and for defrauding people, corporate veil can be lifted with a view to rendering full justice to affected parties (emphasis added)
15. As regards the decision reported 1 MLR (AD) 106 we find that this is a case’ regarding Administrative Tribunal and has no manner of relevance to the instant case.
16. We have also taken into consideration the submission of the learned Advocate appearing for the accused-petitioners that, no specific averment has been made as to who of the accuseds was in charge of running or managing the affairs of the company. On this ground, our considered view is that, it need not be emphasized that a company cannot work without the board of directors. The accused-petitioners are, respectively,’ the Managing Director, Chairman, and the Director. Their presence is necessary to form the quorum of the meetings of the board of directors as well as for adopting any resolution by the board of directors, for operating the accounts of the company, for entering into any deal with any other party as well as for running day to day business of the company, subject to their supervision. As such, apparently they are active party in managing the affairs of and operation the business of the company. Companies Act, Section 95, requires that the Board must sit at least 4(four) times in each year. This also proves the active participation of accuseds, as required by law, in running the affairs of the company. The board decides the date of and holds the AGM and EGM etc too. The accused persons being the MD, Chairman and Director their participation in running and managing the affairs of the company hardly needs any further proof, although the accused petitioners one entitled to adduce evidence at the time of hearing of the case, before the trial Court, on this issues.
17. As regards another submission of the petitioner, we should make it clear that, neither the NT Act, 1881 nor the CrPC. 1898. provides any particulars to be stated in a complaint petition or in an FIR (pleadings), as provided in Order 7 and 8 of the Code of Civil Procedure, 1908, as to what particulars a plaint or a written statement shall contain. Hence, we find the submission of the learned advocate for the accused-petitioner is devoid of any substance and suffer from serious misconception about the pleadings in criminal cases.
18. In view of the deliberation recorded above, we do not find any merit in this Rule. We find substance in the submission of the learned advocate of the complainant OP No: 2, that the petitioner has put the complainant OP No.2 to serious financial hardship, put their business to the verge of ruination and caused severe mental agony due to uncertainty about getting speedy trial and relief in the NI Act case, for which, he submits, exemplary cost should be imposed upon the petitioners, upon considering the face value of this dishonoured cheque as well as the delay and suffering caused by resorting to dilatory tactics by the accused-petitioners.
19. Before parting of, we should bring to the notice of Bangladesh Law Commission and or the Law Ministry that this type of cases are being filed in bunches on frivolous grounds’ mainly because, so far we understand, that the term of imprisonment has been kept maximum I (one) year, whether the cheque is for Taka 5(five) lac or for Taka 5 (five) crore. Therefore the term of imprisonment is required to be reconsidered according to the amount of the cheque. On the other hand, the cheque involves money to be paid to the payee or beneficiary of the cheque. Therefore provision may be made, by inserting a new Section 138B, for substitution of parties, so that a case filed under Section 138 of the Negotiable Instrument Act, 1881, shall not abate even if either the complainant or the accused dies, though the heirs of a deceased accused shall not be subjected to corporal punishment to realize the fine that may be imposed, as we find in Section 34(2) of Artha Rin Adalat Ain, 2003, in respect of substituted heirs. In a case under N1 Act, 1881, where the amount due under the cheque is not secured by any mortgage or pledge then the drawer’s moveable and immovable properties should be liable to attachment and the bank accounts to be freezed. Provisions may be made to that effect. Otherwise, the intent of the legislatures to secure beneficial interest of the payee or a ‘holder in due course’ as well as the entire proceeding is bound to become, in maximum cases, a mere futile exercise. Besides, as a Bench hearing criminal matters, we find that the trial Courts, almost in 100% cases, are granting bail mechanically, as if a routine, without considering the amount due under the cheque and the chance of jumping the bail. Besides, a lot of petitions under Section 561 A CrPC are moved without impleading the beneficiary of the cheque/the complaint as party to the proceeding. Appropriate provisions may be made to secure justice to the aggrieved and to stop indiscriminate granting of bail without it all considering the chance of absconsion, or tampering with the evidence.
20. In view of the deliberation recorded above, we do not find any merit in this Rule and the Rule is liable to be discharged with cost.
21. In a case under Section 138(1) of the Negotiable Instruments Act, 1881, the offence is not deemed to have been committed against the state. The proceeding is initiated by the ‘payee’, or a ‘holder in due course’, who has proprietary right and interest in the property of the dishonoured cheque. The state is not a necessary party, though it may be a property party in such a case. NI Act case is unlike a case filed under Penal Code etc. This distinction will be more clear from the fact that, for preferring appeal against the judgment and order of sentence passed under NI Act, not less than 50% of the amount due under dishonoured the cheque has to be deposited in the trial court, unlike in the case of preferring another appeal against conviction. In a case under NI Act, cost may be awarded to the aggrieved party for causing financial hardship, leading a person or a family to the verge of ruination, for harassment and inflicting mental agony on frivolous grounds or by resorting to dilatory tactics or on issues of law already settled by the Appellate Division, i.e. when the accused- petitioner does not come in clean hands for seeking justice, but with collateral purpose.
Order
In the result the Rule is discharged. The petitioner is directed to pay as cost Taka 2,50,000 to the complainant, within 30(thirty) days of drawing up of this judgment and order.
Let a copy of this judgment be sent to the trial Court and the trial Court is directed to proceed expeditiously for disposal of the case pending before it.
Let another copy of this judgment be sent to the Hon’ble Chairman, Bangladesh Law Commission, so that the Commission may take into notice the observation made in paragraph 18, herein above and may do the needful out of their wisdom.
(Concluded)
