Appellate Division :
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Judgment
March 13th, 2014
Shah Alam (Md)….
……Petitioner
Vs
State, represented by the Deputy Commissioner, Chittagong and another ……Respondents
Negotiable Instruments Act (XXVI of 1881)
Section 138
Person who issued the cheque (accused-petitioner) having full knowledge about the fact that the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant.
The cheque was not returned only on the ground that the signature of another account holder was necessary and that two grounds were assigned for dishonour of the cheque, (1) insufficient fund and (2) joint signatures required. The High Court Division held that it was clearly stated in the complaint that the accused-petitioner in his individual capacity asked for loan of Taka 50,00,000 and that the complaint extended the loan to the accused petitioner accordingly and that the question of liability of the person holding joint account, even if any, was not material. The High Court Division then held that the person who issued the cheque (accused-petitioner) having full knowledge about the fact the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant. ….(7)
Md Khurshid Alam Khan Advocate, instructed by Md Zahirul Islam, Advocate-on-Record-For the Petitioner.
None represented-Respondents.
Judgment
Syed Mahmud Hossain J : This criminal petitioner for leave to appeal is directed against the judgment and order dated 6-2-2011 passed by the High Court Division in Criminal Miscellaneous Case No. 5391 of 2010 discharging the Rule arising out of proceedings of Sessions Case No. 1327 of 2007 corresponding to CR No. 552 of 2009 (Kotwali) under section 138 of the Negotiable Instrument Act now pending in the Court of Additional Mohanagar Sessions Judge, Third Court, Chittagong.
2. The relevant facts for the purpose of disposal of this criminal petition for leave to appeal, in a nutshell, are :
Respondent No. 2, Mohmmad Kamal Uddin Chowdhury lodged a petition of complaint before the Chief Metropolitan Magistrate, Chittagong on 29-4-2009 against accused-petitioner Mohammad Shah Alam under section 138 of the Negotiable Instrument Act, 1881 alleging that while he had cordial relationship with the accused-petitioner, the latter received a loan of Taka 50,00,000 from the complaint with the promise to pay back the money within a few days.
Subsequently, the accused-petitioner issued a cheque dated 2-2-2009 in favour of the complainant for repayment of the loan. When the cheque was presented for encashment at last on 5-2-2009, it was dishonoured for insufficiency of fund in the account of the drawer with an added remark that joint signatures were required. On 8-2-2009 at about 7-00 P.M., the complainant personally approached the accused-petitioner to get the amount of money for which the cheque was issued but the latter refused to pay.
As such, on 25-2-2009, a legal notice was issued upon the accused-petitioner and it was duly received by him on 19-3-2009. But as the accused-petitioner did not pay the amount of the dishonoured cheque within the stipulated period, the petition of complaint was filed on 29-4-2009.
The learned Additional Chief Metropolitan Magistrate, Chittagong took cognizance under section 138 of the Negotiable Instrument Act. 1881 and subsequently, it was transferred to Mohanagar Additional Sessions Judge, Third Court, Chittagong, When the case was pending before the said Court, the accused-petitioner preferred an application under section 561 A of the Code of Criminal Procedure before the High Court Division and obtained Rule in Criminal Miscellaneous Case No. 5391 of 2010.
3. The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 6-2-2011 discharged the Rule and vacated the order of stay granted earlier by this Court and also directed the trial Court to proceed with the case in accordance with law.
4. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave petitioner has preferred this criminal petition for leave to appeal before this Division.
5. Mr Md Khurshid Alam Khan, learned Advocate, appearing on behalf of the leave petitioner, submits that Joint signatures are the vital issue in the instant case and that the allegation of dishonour of cheque on account of joint signatures does not constitute offence under section 138 read with section 141 of the Negotiable instrument Act.
6. We have considered the submissions of the learned Advocate for the petitioner, perused the impugned judgment and the materials on record.
7. The High Court Division held that the cheque was not returned only on the ground that the signature of another account holder was necessary and that two grounds were assigned for dishonour of the cheque , (1) insufficient fund and (2) joint signatures required.
The High Court Division held that it was clearly stated in the complaint that the accused-petitioner in his individual capacity asked for loan of Taka 50,00,000 and that the complainant extended the loan to the accused-petitioner accordingly and that the question of liability of the person holding joint account, even if any, was not material, The High Court division then held that the person who issued the cheque (accused-petitioner) having full knowledge about the fact that the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant.
The aforesaid findings of the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly this criminal petition for leave to appeal is dismissed.
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Judgment
March 13th, 2014
Shah Alam (Md)….
……Petitioner
Vs
State, represented by the Deputy Commissioner, Chittagong and another ……Respondents
Negotiable Instruments Act (XXVI of 1881)
Section 138
Person who issued the cheque (accused-petitioner) having full knowledge about the fact that the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant.
The cheque was not returned only on the ground that the signature of another account holder was necessary and that two grounds were assigned for dishonour of the cheque, (1) insufficient fund and (2) joint signatures required. The High Court Division held that it was clearly stated in the complaint that the accused-petitioner in his individual capacity asked for loan of Taka 50,00,000 and that the complaint extended the loan to the accused petitioner accordingly and that the question of liability of the person holding joint account, even if any, was not material. The High Court Division then held that the person who issued the cheque (accused-petitioner) having full knowledge about the fact the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant. ….(7)
Md Khurshid Alam Khan Advocate, instructed by Md Zahirul Islam, Advocate-on-Record-For the Petitioner.
None represented-Respondents.
Judgment
Syed Mahmud Hossain J : This criminal petitioner for leave to appeal is directed against the judgment and order dated 6-2-2011 passed by the High Court Division in Criminal Miscellaneous Case No. 5391 of 2010 discharging the Rule arising out of proceedings of Sessions Case No. 1327 of 2007 corresponding to CR No. 552 of 2009 (Kotwali) under section 138 of the Negotiable Instrument Act now pending in the Court of Additional Mohanagar Sessions Judge, Third Court, Chittagong.
2. The relevant facts for the purpose of disposal of this criminal petition for leave to appeal, in a nutshell, are :
Respondent No. 2, Mohmmad Kamal Uddin Chowdhury lodged a petition of complaint before the Chief Metropolitan Magistrate, Chittagong on 29-4-2009 against accused-petitioner Mohammad Shah Alam under section 138 of the Negotiable Instrument Act, 1881 alleging that while he had cordial relationship with the accused-petitioner, the latter received a loan of Taka 50,00,000 from the complaint with the promise to pay back the money within a few days.
Subsequently, the accused-petitioner issued a cheque dated 2-2-2009 in favour of the complainant for repayment of the loan. When the cheque was presented for encashment at last on 5-2-2009, it was dishonoured for insufficiency of fund in the account of the drawer with an added remark that joint signatures were required. On 8-2-2009 at about 7-00 P.M., the complainant personally approached the accused-petitioner to get the amount of money for which the cheque was issued but the latter refused to pay.
As such, on 25-2-2009, a legal notice was issued upon the accused-petitioner and it was duly received by him on 19-3-2009. But as the accused-petitioner did not pay the amount of the dishonoured cheque within the stipulated period, the petition of complaint was filed on 29-4-2009.
The learned Additional Chief Metropolitan Magistrate, Chittagong took cognizance under section 138 of the Negotiable Instrument Act. 1881 and subsequently, it was transferred to Mohanagar Additional Sessions Judge, Third Court, Chittagong, When the case was pending before the said Court, the accused-petitioner preferred an application under section 561 A of the Code of Criminal Procedure before the High Court Division and obtained Rule in Criminal Miscellaneous Case No. 5391 of 2010.
3. The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 6-2-2011 discharged the Rule and vacated the order of stay granted earlier by this Court and also directed the trial Court to proceed with the case in accordance with law.
4. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave petitioner has preferred this criminal petition for leave to appeal before this Division.
5. Mr Md Khurshid Alam Khan, learned Advocate, appearing on behalf of the leave petitioner, submits that Joint signatures are the vital issue in the instant case and that the allegation of dishonour of cheque on account of joint signatures does not constitute offence under section 138 read with section 141 of the Negotiable instrument Act.
6. We have considered the submissions of the learned Advocate for the petitioner, perused the impugned judgment and the materials on record.
7. The High Court Division held that the cheque was not returned only on the ground that the signature of another account holder was necessary and that two grounds were assigned for dishonour of the cheque , (1) insufficient fund and (2) joint signatures required.
The High Court Division held that it was clearly stated in the complaint that the accused-petitioner in his individual capacity asked for loan of Taka 50,00,000 and that the complainant extended the loan to the accused-petitioner accordingly and that the question of liability of the person holding joint account, even if any, was not material, The High Court division then held that the person who issued the cheque (accused-petitioner) having full knowledge about the fact that the cheque could not be encashed on the basis of his signature, issued the same with the malafide intention to frustrate the claim of the complainant.
The aforesaid findings of the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly this criminal petition for leave to appeal is dismissed.
