High Court Division :(Criminal Miscellaneous Jurisdiction) Md Shawkat Hossain JMustafa Zaman Islam JJudgmentJanuary 11th, 2015Firoz Alam (Md)… Accused-Petitioner (both the petition)vsState and another………….. Opposite-PartiesCode of Criminal Procedure (V of 1898) Section 561A Negotiable Instruments Act (XXVI of 1881) Section 138 Notice to the petitioner company had returned undelivered with the endorsement “party was absent every time”. Whether the accused petitioner received the legal notice or not, these are disputed question of fact which can only be adjudicated by taking evidence through trial. ………(11) Negotiable Instruments Act (XXVI of 1881) Section 138 All legal formalities as laid down under section 138 of the Act have been complied with. It appears that company is not a made party in the proceedings. This is a criminal case not a civil case, in fact, civil case is required to be party but there is no defect of party or necessary party is required for criminal justice system therefore, the question raised by the petitioner is not correct proposition of law. .. …. (12) Zahed Hossain vs State, 61 DLR 386; Shamsul Alam vs State, 60 DLR 677; Nizam Uddin Mahmood vs Abdul Hamid Bhuiyan, 60 DLR (AD) 295; Soumitra Sankar Das vs State 33 BLD 91; Soumitra Sankar Das vs State, 33 BLD 91; and Arifuzzaman vs State, 17 BLC (AD) 167 ref. Rezaul Karim with Md Asaduzzaman, Advocates–For the Petitioner. Khan Khalid Adnan, Advocate–For the Opposite Party) No.2. Judgment Mustafa Zaman Islam J : Since these applications involve common facts as well as questions of law, they are taken up together for hearing and disposed of by this single judgment and parties being same. 2. In Criminal Miscellaneous Case No. 9334 of 2011, this rule was issued, on an application under section 561A of the Code of Criminal Procedure, at the instance of the accused petitioner Md Firoz Alam, calling upon the opposite parties to show cause as to why the proceedings of the Metro Sessions Case No. 1386 of 2009 arising out of CR Case No. 446 of 2008 under section 138 of the Negotiable Instruments Act, 1881, now pending before the 3rd Court of the Additional Metropolitan Sessions Judge, Dhaka should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper. 3. Even the background facts are identical. We shall refer to the facts in Criminal Miscellaneous Case No. 9334 of 2011 as illustrative. Short facts leading to this rule are that the opposite party No. 2 as complainant filed a petition of complaint before the Court of Chief Metropolitan Magistrate, Dhaka alleging inter alia that on 12-10-2004 the Accused-Petitioner as the Managing Director of Ibrahim Textiles Mill Limited had entered into an agreement with the Complainant opposite party No.2 for selling 600 metric tons of Cl Sheet valued at Taka 1,20,00,000 (one crore twenty lakh only) and the said amount was taken in advance. The accused petitioner failed to supply the goods to the Complainant for which he demanded return of the advance and for paying the said advance the petitioner issued an account payee cheque being No. AWCD/B 0361312 dated 3-9-2007 for an amount of Taka 25,00,000 (twenty-five lakh only) from his current account being No. 13300006464 with Social Investment Bank Limited, Dhaka. The Complainant placed the said cheque for encashment with the Bangladesh Commerce Bank, Moulvibazar Branch on 1-11-2007 which was dishonored for the reason “insufficient fund”. The Complainant then through his lawyer issued a Legal Notice dated 28-11-2007 demanding the payment of Taka 25,00,000 (twenty-five lakh only) within 30 days. The notice was returned on 5-12-2007 stating, on it that since the recipient i.e. the instant petitioner was absent every time, the notice is returned undelivered. Without having money in the account, cheque was issued by the Petitioner and hence the offence was committed in relating to punishable under section 138 of the Negotiable Instrument Ad, 1881. The learned Court of Chief Metropolitan Magistrate, Dhaka upon recording the statement made by the complainant under section 200 of the Code of Criminal procedure and took cognizance of the matter on 24-1-2008 and issued summon against the petitioner. The petitioner having been informed about the case voluntarily surrendered on 15-9-2008 before the Chief Metropolitan Magistrate and obtained bail. When the case is ready, and the case was sent to the Metropolitan Sessions Judge, Dhaka for trial and disposal and the same was registered as Metro. Session Case No. 1386 of 2009 ultimately the case was sent to the Court of 3rd Additional Metro Session Judge, Dhaka for trial and disposal. Meanwhile, the petitioner filed an application under section 265C of the Code of Criminal Procedure for discharging him from the charge. After hearing the parties, the learned Additional Metropolitan Sessions Judge rejected the application and charge was framed under section 138 of the Negotiable Instrument Act, 1881.4. In Criminal Miscellaneous Case No. 19002 of 2010, this rule was issued, on an application under section 561A of the Code of Criminal Procedure, at the instance of the accused petitioner Md Firoz Alom, calling upon the opposite parties to show cause as to why the proceedings of CR Case No 445 of 2008 under section 138 of the Negotiable Instruments Act, 1881, now pending before the 4th of Additional Metropolitan Sessions Judge, Dhaka should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper. 5. The petitioners are same in both the Criminal Miscellaneous case and facts are almost same but the law point is common. It has been commonly argued in the above mentioned cases. 6. We have heard Md Asaduzzaman, the learned Advocate appearing on behalf of the petitioner in both applications in support of the rules, submit that the impugned proceedings has been taken against the petitioner admittedly without serving any notice upon him which is clear in the petition of complaint itself and, as such, taking cognizance and continuation of the proceedings without serving any notice is against the provision of section 138 of the Negotiable Instruments Act 1881 as such, the proceeding. is liable to be quashed. The learned Advocate for the petitioner has argued that in the light of the facts and circumstances, the cheque was issued by the company but the company or its directors have not been notified or served notice or made accused in the proceedings which is a requirement of section 140 of the Act 1881 and, as such, without complying with such provision of law initiation or continuation of proceeding with be nothing but an abuse of the process of the Court which is liable to be quashed. He further submit that if the allegation brought against the petitioner is taken into consideration at its entirety, it does not constitute an offence under the Act, 1881 in as much as no offence is said to have been committed without serving any notice upon the petitioner and the instant case admittedly the notice has not been served therefore, the proceedings of the case is liable to be quashed. Last but not least, he submits that under the definition of the provision of section 5, 6 and 123 (A) of the Act, 1881, an account payee cheque ceases to be Negotiable and therefore, if an account-payee cheque is not a cheque in the eye of law for the purpose of section 138 of the Act, 1881, for ends of justice the proceedings should be quashed. 7. Mr Khan Khalid Adnan, the learned Advocate for the opposite party No.2 on the other hand opposes the rule by filing counter affidavit submits that notice under section 138 of the Act 1881 was duly served upon the accused petitioner but non service of notice raised by the petitioner is misconceived one as because notice was served upon the petitioner within the statutory period with registered A/D and hence the presumption of proper service of notice under section 27 of the General Clauses Act becomes operative in favour of the opposite party No.2 and therefore, accordingly to the postal endorsement on the said cover, the notice would be deemed to have been served under section 27 of the General Clauses Act, therefore, the Rule is liable to be discharged. He next submits that section 140 of the Act 1881 is not a mandatory provision of law and also that the company from whose account the cheque was issued needs not be mandatorily made a party in criminal proceedings as such, the rule is liable to be discharged for ends of justice. The learned Advocate has relied in his submission. placed before us in the case of Zahed Hossain (Md) vs State reported in 61DLR 386, Shamsul Alam alias Babul vs State reported in 60 DLR 677 and Nizam Uddin Mahmood vs Abdul Hamid Bhuiyan reported in 60 DLR (AD) 295.8. We have gone through the application under section 561A of the code of criminal procedure, petition of complaint along with other material record and heard the submission for both parties. 9. In this regard, the facts and circumstance, the question that requires to be answered in the case in hand is whether the holder of a cheque i.e complainant can initiate the proceedings for an offence relating to punishable under section 138 of the Act 1881 for its dishonour of the cheque for non service of notice upon the petitioner. 10. The above question came up for consideration that three points are to be looked into– (i) Whether the complainant has placed the cheque within specified time, (ii) Whether he has given notice of demand within specified time with acknowledgement due, and (iii) Whether he has filed the case within prescribed time mentioned in the statute. 11. It appears from the petition of complaint it was stated that on 1-11-2007 the opposite party No.2 as complainant presented the cheque with the Bangladesh Commerce Bank for encashment and the same was dishonored on the same date with remark for insufficiency of fund of the account of the petitioner. On 28-11-2007 demand notice was served upon the petitioner through his lawyer. The learned Advocate for the petitioner gave emphasis that the petitioner company or its Directors admittedly have neither been notified nor been made parties in the proceedings as such no cause of action has been disclosed. Once again, on the plea that the statutory demand notice under Section 138 of the Act 1881 was never on him. Notice to the petitioner company had returned undelivered with the endorsement “party was absent every time”. But in the instant case, it is not in dispute that the notice was sent by registered post to the correct address. It was held to be a fit case to presume the due service of notice and also that the petitioner deliberately evaded to receive the said notice to escape from the liability to pay the cheque amount. It would be mentioned here that whether the accused petitioner received the legal notice or not, these are disputed question of fact which can only be adjudicated by taking evidence through trial Court. 12. The learned Advocate for the opposite party No.2 has drawn our attention that as per section 27 of the General Clauses Act the notice will be deemed to have been served and the petitioner could not be allowed to escape liability. That proposition of law is very much applicable in the instant case. So, we find that all legal formalities as laid down under section 138 of the Act 1881 have been complied with. Further, it appears that company is not a made party in the instant proceedings. This is a criminal case not a civil case, in fact, civil case is required to be party but there is no defect of party or necessary party is required for criminal justice system therefore, the question raised by the petitioner is not correct proposition law. It would be profitable to mention in the case of Soumitra Sankar Das vs the State reported in 33 BLD 91 wherein observed that– “In the light of the discussion made above and having regard to the facts and circumstances of the instant case, we are led to hold that the petitioner being admitted signatories to the bounced cheque may be proceeded against under section 138 even in the absence of the company (actual drawer) and their liability is covered by the provisions of sub-section (2) of section 140 of the Act of 1881”.13. Now, another pertinent A question arises that under sections section 5,6 and 123A of the Negotiable Instrument Act 1881, an account payee cheque cases to be a cheque and therefore, it is not a cheque in the eye of law. But the same question raised earlier by this Court in another case and it is well settled by our Appellate Division that section 123A of the Act, is no way, create any bur in proceeding with a case under section 138 of the Act 1881. In support, reliance was placed in the decision of our Appellate Division in the Case of Arifuzzaman vs State reported in 17 BLC (AD) 167 their lordships held that — “Moreover, section 138 of the Act 1881 which has defined “Negotiable instrument” has not made any distinction between crossed cheque “account payee” or cheque of other kind such as bearer cheque as we ordinarily mean. Thus, we find that section 123A of the Act, in no way creates any bar in proceeding with a case under section 138 of the Act, 1881″.14. The ratio of the above case by now has been applied in the instant case. 15. We find great deal of force and logic in those decisions. As a matter of fact, we are in respectful agreement with the views and observation of above decisions. We are unable to agree with the contentions advanced by the learned Advocate for the petitioner, This case is a classic example to initiate or constitute the proceedings under section 138 of the Negotiable Instruments Act, 1881, by the complainant. 16. From the foregoing discussion and in the facts and circumstances of the case, We find that no reasonable grounds has arisen for quashing the proceeding of the case pending in the court below. It necessarily follows that the initiation and continuation of the proceedings of the cases pending in the lower Court are not abuse of the process of the Court. In this perspective, the question of quashing the proceedings of the cases are out of the question. The rules, therefore, fails.17. Accordingly, the rules are discharged Stay orders passed in connection with rules stand vacated. The trial Court shall proceed with the cases in accordance with law.Communicate the order at once.
