Appellate Division :
(Criminal)
Md Fazlul Karim J
Md Joynul Abedin J
Shah Abu Nayeem
Mominur Rahman J
Judgment
March 22th, 2009.
Joynul Karim and others ……..Petitioners
vs
State and another……Respondents
Code of Criminal Procedure (V of 1898) Section 561A
Negotiable Instruments Act (XXVI of 1881) Section 138
The alleged omission of impleading the Company in the proceeding is an irregularity and the same is not fatal and that though the company is not made a party in the proceeding but the persons concerned representing the company, who are party in the issuance of the dishonoured cheque in reference, having been made party in the proceeding, the proceeding cannot be said to be bad for defect of party inasmuch as the punishment if any on proof, is to be inflicted upon the natural persons involved in the offence committed …………(5)
Ajmalul Hossain QC Senior Advocates, instructed by Md Wahidullah, Advocate-on-Record-For the Petitioners.
Bivash Chandra Biswas, Advocate-on-Record-For Respondent No.2.
None Represented -For the Respondent No. 1.
Judgment
Shah Abu Nayeem Mominur Rahman J :
Delay of 6 days in filing this application is condoned.
2. By this application the petitioners have prayed for leave to appeal against the judgment and order dated 8-5-2008 passed in Criminal Miscellaneous Case No. 7287 of 2005 by the High Court Division discharging the Rule.
3.The High Court Division issued a Rule on an application filed under section 561A of the Code of Criminal Procedure for quashment of the proceeding of CR Case No. 359 of 2002 under section 138 of the Negotiable Instrument Act,1881 pending before the Chief Metropolitan Magistrate, Dhaka, which was registered as Miscellaneous Case No. 7287 of 2005.
4.The CR Case No. 359 of 2002 arises out of an application filed by the respondent No.2, Anowar Hossain, against the petitioner alleging, inter alia, that the petitioner had business relationship with the firm Messers Karim Galvanizing Steel Limited, of which accused No.1, Joynul Karim is the Managing Director, accused No.2, M Rahman alias Meshbahur Rahman is the Executive Director and accused No.3, Jaglul Karim is a Director, and in accordance with their business dealings, the complainant-petitioner supplied aluminum steel goods worth Taka 2,36,00,000 against which two bills were submitted, each for Taka 1,18,00,000, and the accused persons paid one bill and the other remained unpaid and subsequently accused persons paid Taka 50,00,000 against the unpaid bill for Taka 1,18,00,000 and thereby balance outstanding amount stood at Taka 68,00,000, payable by the accused persons to the complainant petitioner. Thereafter, the complainant further supplied 30 mectric tons of aluminum iron worth Taka 35,11,000 and accordingly submitted the bill, against which part payment of Taka 30,00,000 was made. Thus balance amount of Taka 5,11,000 remained unpaid against this bill. Thus, the total outstanding amount payable by the accused persons to the complainant petitioner stood at Taka 68 lacs plus Taka 5.11 ac s i.e. total Taka 73.11 lacs and that after much persuasion the accused No.2 by letter dated 28-2-2001 confirmed payment of outstanding bill amount within 6 (six) months from date, which the accused persons failed to comply with, but on 14-6-2001 the accused No. 1 gave a postdated cheque dated 28-8-2001 in favour of the complainant petitioner towards payment of the outstanding amount for Taka 68,00,000 against the earlier bill assuring payment of the balance of Taka 5.11 lacs of the last bill later. Accordingly, the complainant petitioner, as per assurance of payment given by the accused No.1, deposited the said cheque for Taka 68,00,000 dated 28-8-2001 in the Bank for encashment but the cheque was dishonoured and returned with the endorsement “not arranged for and refer to drawar” and thereafter the complainant petitioner through its letter dated 19-9-2001 informed the accused No.1 about non-payment and requested to confirm about encashment of the cheque but without any response. Then, on contact over telephone made by the complainant petitioner, the accused No. 1 expressed apologies for such non-encashment of the cheque and requested the petitioner to deposit the cheque again in the month of October and accordingly on 23-102001 the cheque was again deposited for. encashment through bank but again encashment was refused with the endorsement “not arranged for and refer to drawer” and faced with such situation the complainant petitioner requested the accused No. 1 for payment against said cheque but without any response and thereafter on 12-1-2002 the said cheque was again deposited in the bank for encashment and the same was returned with the endorsement “not arranged for and refer to drawer.” In such circumstances the complainant-petitioner caused issuance of legal notice under registered post demanding payment against the cheque but the accused persons avoided to receive the notice, which returned undelivered, and thereafter the complainant petitioner filed the case. The accused persons as petitioners moved the Additional Sessions Judge, Dhaka, in Metro Criminal Revision No. 443 of 2002 by filing an application under section 439A of the Code of Criminal Procedure praying for their discharge from the case submitting, amongst others, that earlier the petitioners filed an application under Section 241A of the Code of Criminal Procedure for their discharge from the case i.e. in CR Case No. 359 of 2002, which after hearing was rejected by order dated 27-7-2002 passed by Metropolitan Magistrate, Dhaka, and that the Metropolitan Additional Sessions Judge, 2nd Court, Dhaka, heard and disposed of the Criminal Revision No. 443 of 2002 by the judgment and order dated 20-1-2003 allowing the revision setting aside the judgment and order dated 27-7-2002 passed by the Metropolitan Magistrate in CR Case No. 359 of 2002 in respect of the case filed under Section 138 of the Negotiable Instrument Act, 1881, holding that the complainant failed to file the case within the stipulated period and the learned Magistrate failed to appreciate the law of limitation and has illegally framed the charge against the accused persons and that the accused persons are entitled to be discharged from the case. Being aggrieved the complainant as petitioner moved the High Court Division in Criminal Miscellaneous Case No. 3203 of 2004, which was allowed by a Division Bench of the High Court Division, pursuant to which one of the petitioner of Criminal Miscellaneous Case No. 7287 of 2005 was arrested as it is alleged that thus the other two accused persons came to know about the decision of the High Court Division in Criminal Miscellaneous Case No. 3203 of 2004 and then the accused petitioners moved the High Court Division in Criminal Miscellaneous Case No. 7287 of 2005 under Section 561A of the Code of Criminal Procedure praying for quashment of the proceeding initiated as aforesaid. The High Court Division upon hearing discharged the Rule observing that :-
“we do not find presence of any of such ground to eliminate a criminal proceeding without allowing to hold a fair trial. Rather we find existence of a prima-facie case of the opposite party No.2 complainant to proceed against the accused-petitioners under section 138 of the Negotiable Instrument Act, 1881, and there is hardly any reason to hold the view that continuation of such proceeding will be sheer abuse of the process of the Court and that it has been brought for the purpose of harassment.”
5. The High Court Division further observed that:-“the inherent power under Section 561 A of the Code of Criminal Procedure for quashment of a proceeding, particularly when the stage of examining PWs appears to have been started, should sparingly to be exercised. It has already been settled by their lordships of the Appellate Division in the case of Ali Akkas vs Enayet Hossain and others, reported in 17 BLD ( AD) 44 and also in some other reported cases that the scope of the quashment proceeding is very limited and some set points have been formulated for the purpose of consideration of an application under Section 561A of the Code of Criminal Procedure.”
6. In discharging the Rule- their lordship in the High Court Division also observed that the grounds taken for quashment under Section -561A of the Code of Criminal Procedure are hyper technical in nature, which cannot be considered as substantial ground for the purpose of interference under Section 561A of the Code of Criminal Proceeding and that the alleged omission of impleading the Company in the proceeding is an irregularity and the same is not fatal and that though the company is not made a party in the proceeding but the persons concerned representing the company, who are party in the issuance of the dishonoured cheque in reference, having been made party in the proceeding, the proceeding cannot be said to be bad for defect of party inasmuch as the punishment if any on proof, is to be inflicted upon the natural persons involved in the offence committed. The High Court Division, appeared to have also discussed the issue of return of the legal notice, and answered the same as being “intentionally avoided” inasmuch as the legal notice sent under registered post were correctly addressed and the address being of the registered office of the company, refusal to accept legal notice addressed to the Directors of the Company in their personal names, are manifestly malafide and intentional and that the case has been filed within time from the date of cause of action as per Section 141(c) of the Negotiable Instrument Act, 1881.
7. The learned Advocate for the petitioner before us submitted that the case is bad for noncompliance of the pre-condition for making demand for payment within 15 (fifteen) days from the date of dishonour of cheque as per proviso-B of Section 138 of the Negotiable Instrument Act, 1881 and further there being no service of legal notice no question of effective demand in the eye of law is in existence and in the absence any valid demand, the CR Case is liable to be quashed, and that the cause of action as alleged in the complaint petition is ex-facie beyond the period of limitation and as such there was absence of cause of action and therefore the continuation of the impugned proceeding is an abuse of process of Court and that the dispute as to non-payment is of civil nature.
8. We have perused the application for leave to appeal and the judgment and order passed by the High Court Division as well as the judgment and order passed by the court below on the application filed under Section 241A of the Code of Criminal Procedure. There is no denial as to the dishonouring of the cheque issued by the accused petitioner and the fact of issuance of legal notice after the last occasion of dishonouring the cheque by the Bank concerned with the endorsement “not arranged for and refer to the drawer” and on the face of dishonour of the disputed cheque and non-response to the demand for payment against dishonoured cheque we find criminality as alleged and as the High Court Division has observed that the accused persons have been’ avoiding payment and that the legal notice was issued within time and the complaint case has also been initiated within time, we do not find any illegality in the judgment and order passed by the High Court Division in discharging the Rule. The High Court Division on detailed discussions on the issues involved has arrived at its decision with cogent reasonings, which are in accordance with law, and hence no interference is called for.
Accordingly, the petition for leave to appeal is dismissed.
(Criminal)
Md Fazlul Karim J
Md Joynul Abedin J
Shah Abu Nayeem
Mominur Rahman J
Judgment
March 22th, 2009.
Joynul Karim and others ……..Petitioners
vs
State and another……Respondents
Code of Criminal Procedure (V of 1898) Section 561A
Negotiable Instruments Act (XXVI of 1881) Section 138
The alleged omission of impleading the Company in the proceeding is an irregularity and the same is not fatal and that though the company is not made a party in the proceeding but the persons concerned representing the company, who are party in the issuance of the dishonoured cheque in reference, having been made party in the proceeding, the proceeding cannot be said to be bad for defect of party inasmuch as the punishment if any on proof, is to be inflicted upon the natural persons involved in the offence committed …………(5)
Ajmalul Hossain QC Senior Advocates, instructed by Md Wahidullah, Advocate-on-Record-For the Petitioners.
Bivash Chandra Biswas, Advocate-on-Record-For Respondent No.2.
None Represented -For the Respondent No. 1.
Judgment
Shah Abu Nayeem Mominur Rahman J :
Delay of 6 days in filing this application is condoned.
2. By this application the petitioners have prayed for leave to appeal against the judgment and order dated 8-5-2008 passed in Criminal Miscellaneous Case No. 7287 of 2005 by the High Court Division discharging the Rule.
3.The High Court Division issued a Rule on an application filed under section 561A of the Code of Criminal Procedure for quashment of the proceeding of CR Case No. 359 of 2002 under section 138 of the Negotiable Instrument Act,1881 pending before the Chief Metropolitan Magistrate, Dhaka, which was registered as Miscellaneous Case No. 7287 of 2005.
4.The CR Case No. 359 of 2002 arises out of an application filed by the respondent No.2, Anowar Hossain, against the petitioner alleging, inter alia, that the petitioner had business relationship with the firm Messers Karim Galvanizing Steel Limited, of which accused No.1, Joynul Karim is the Managing Director, accused No.2, M Rahman alias Meshbahur Rahman is the Executive Director and accused No.3, Jaglul Karim is a Director, and in accordance with their business dealings, the complainant-petitioner supplied aluminum steel goods worth Taka 2,36,00,000 against which two bills were submitted, each for Taka 1,18,00,000, and the accused persons paid one bill and the other remained unpaid and subsequently accused persons paid Taka 50,00,000 against the unpaid bill for Taka 1,18,00,000 and thereby balance outstanding amount stood at Taka 68,00,000, payable by the accused persons to the complainant petitioner. Thereafter, the complainant further supplied 30 mectric tons of aluminum iron worth Taka 35,11,000 and accordingly submitted the bill, against which part payment of Taka 30,00,000 was made. Thus balance amount of Taka 5,11,000 remained unpaid against this bill. Thus, the total outstanding amount payable by the accused persons to the complainant petitioner stood at Taka 68 lacs plus Taka 5.11 ac s i.e. total Taka 73.11 lacs and that after much persuasion the accused No.2 by letter dated 28-2-2001 confirmed payment of outstanding bill amount within 6 (six) months from date, which the accused persons failed to comply with, but on 14-6-2001 the accused No. 1 gave a postdated cheque dated 28-8-2001 in favour of the complainant petitioner towards payment of the outstanding amount for Taka 68,00,000 against the earlier bill assuring payment of the balance of Taka 5.11 lacs of the last bill later. Accordingly, the complainant petitioner, as per assurance of payment given by the accused No.1, deposited the said cheque for Taka 68,00,000 dated 28-8-2001 in the Bank for encashment but the cheque was dishonoured and returned with the endorsement “not arranged for and refer to drawar” and thereafter the complainant petitioner through its letter dated 19-9-2001 informed the accused No.1 about non-payment and requested to confirm about encashment of the cheque but without any response. Then, on contact over telephone made by the complainant petitioner, the accused No. 1 expressed apologies for such non-encashment of the cheque and requested the petitioner to deposit the cheque again in the month of October and accordingly on 23-102001 the cheque was again deposited for. encashment through bank but again encashment was refused with the endorsement “not arranged for and refer to drawer” and faced with such situation the complainant petitioner requested the accused No. 1 for payment against said cheque but without any response and thereafter on 12-1-2002 the said cheque was again deposited in the bank for encashment and the same was returned with the endorsement “not arranged for and refer to drawer.” In such circumstances the complainant-petitioner caused issuance of legal notice under registered post demanding payment against the cheque but the accused persons avoided to receive the notice, which returned undelivered, and thereafter the complainant petitioner filed the case. The accused persons as petitioners moved the Additional Sessions Judge, Dhaka, in Metro Criminal Revision No. 443 of 2002 by filing an application under section 439A of the Code of Criminal Procedure praying for their discharge from the case submitting, amongst others, that earlier the petitioners filed an application under Section 241A of the Code of Criminal Procedure for their discharge from the case i.e. in CR Case No. 359 of 2002, which after hearing was rejected by order dated 27-7-2002 passed by Metropolitan Magistrate, Dhaka, and that the Metropolitan Additional Sessions Judge, 2nd Court, Dhaka, heard and disposed of the Criminal Revision No. 443 of 2002 by the judgment and order dated 20-1-2003 allowing the revision setting aside the judgment and order dated 27-7-2002 passed by the Metropolitan Magistrate in CR Case No. 359 of 2002 in respect of the case filed under Section 138 of the Negotiable Instrument Act, 1881, holding that the complainant failed to file the case within the stipulated period and the learned Magistrate failed to appreciate the law of limitation and has illegally framed the charge against the accused persons and that the accused persons are entitled to be discharged from the case. Being aggrieved the complainant as petitioner moved the High Court Division in Criminal Miscellaneous Case No. 3203 of 2004, which was allowed by a Division Bench of the High Court Division, pursuant to which one of the petitioner of Criminal Miscellaneous Case No. 7287 of 2005 was arrested as it is alleged that thus the other two accused persons came to know about the decision of the High Court Division in Criminal Miscellaneous Case No. 3203 of 2004 and then the accused petitioners moved the High Court Division in Criminal Miscellaneous Case No. 7287 of 2005 under Section 561A of the Code of Criminal Procedure praying for quashment of the proceeding initiated as aforesaid. The High Court Division upon hearing discharged the Rule observing that :-
“we do not find presence of any of such ground to eliminate a criminal proceeding without allowing to hold a fair trial. Rather we find existence of a prima-facie case of the opposite party No.2 complainant to proceed against the accused-petitioners under section 138 of the Negotiable Instrument Act, 1881, and there is hardly any reason to hold the view that continuation of such proceeding will be sheer abuse of the process of the Court and that it has been brought for the purpose of harassment.”
5. The High Court Division further observed that:-“the inherent power under Section 561 A of the Code of Criminal Procedure for quashment of a proceeding, particularly when the stage of examining PWs appears to have been started, should sparingly to be exercised. It has already been settled by their lordships of the Appellate Division in the case of Ali Akkas vs Enayet Hossain and others, reported in 17 BLD ( AD) 44 and also in some other reported cases that the scope of the quashment proceeding is very limited and some set points have been formulated for the purpose of consideration of an application under Section 561A of the Code of Criminal Procedure.”
6. In discharging the Rule- their lordship in the High Court Division also observed that the grounds taken for quashment under Section -561A of the Code of Criminal Procedure are hyper technical in nature, which cannot be considered as substantial ground for the purpose of interference under Section 561A of the Code of Criminal Proceeding and that the alleged omission of impleading the Company in the proceeding is an irregularity and the same is not fatal and that though the company is not made a party in the proceeding but the persons concerned representing the company, who are party in the issuance of the dishonoured cheque in reference, having been made party in the proceeding, the proceeding cannot be said to be bad for defect of party inasmuch as the punishment if any on proof, is to be inflicted upon the natural persons involved in the offence committed. The High Court Division, appeared to have also discussed the issue of return of the legal notice, and answered the same as being “intentionally avoided” inasmuch as the legal notice sent under registered post were correctly addressed and the address being of the registered office of the company, refusal to accept legal notice addressed to the Directors of the Company in their personal names, are manifestly malafide and intentional and that the case has been filed within time from the date of cause of action as per Section 141(c) of the Negotiable Instrument Act, 1881.
7. The learned Advocate for the petitioner before us submitted that the case is bad for noncompliance of the pre-condition for making demand for payment within 15 (fifteen) days from the date of dishonour of cheque as per proviso-B of Section 138 of the Negotiable Instrument Act, 1881 and further there being no service of legal notice no question of effective demand in the eye of law is in existence and in the absence any valid demand, the CR Case is liable to be quashed, and that the cause of action as alleged in the complaint petition is ex-facie beyond the period of limitation and as such there was absence of cause of action and therefore the continuation of the impugned proceeding is an abuse of process of Court and that the dispute as to non-payment is of civil nature.
8. We have perused the application for leave to appeal and the judgment and order passed by the High Court Division as well as the judgment and order passed by the court below on the application filed under Section 241A of the Code of Criminal Procedure. There is no denial as to the dishonouring of the cheque issued by the accused petitioner and the fact of issuance of legal notice after the last occasion of dishonouring the cheque by the Bank concerned with the endorsement “not arranged for and refer to the drawer” and on the face of dishonour of the disputed cheque and non-response to the demand for payment against dishonoured cheque we find criminality as alleged and as the High Court Division has observed that the accused persons have been’ avoiding payment and that the legal notice was issued within time and the complaint case has also been initiated within time, we do not find any illegality in the judgment and order passed by the High Court Division in discharging the Rule. The High Court Division on detailed discussions on the issues involved has arrived at its decision with cogent reasonings, which are in accordance with law, and hence no interference is called for.
Accordingly, the petition for leave to appeal is dismissed.
