High Court Division :
(Criminal Miscellaneous Jurisdiction)
Farah Mahbub J
Mahmudul Hoque J
Shahidul Islam (Md)……………..Accused-Petitioner (in all the cases)
Vs
State and another………Opposite-Parties (in all the cases)
Judgment
February 5th, 2018
Code of Criminal Procedure (V of 1898)
Section 561A
In an appropriate case, if on the face of the document which are beyond suspicion or doubt, placed by accused and not disputed by the prosecution the accusation against him cannot stand, for, it would be travesty of justice, if the accused is relegated to trial and he is asked to prove his defence before the trial court. .. …. (34)
Code of Criminal Procedure (V of 1898)
Section 561A
For the ends of justice or to prevent injustice or abuse of process of the court, this Court may look into the materials submitted by the parties, which have significant bearing on the matter at prima facie stage. . ….. (35)
Code of Criminal Procedure (V of 1898)
Section 561A
A director whose share transfer has been approved and accepted by the company and that has been duly notified to the Registrar of Joint Stock Companies cannot be made accountable and fastened with liability for anything done by the company after the transfer of his entire shares and cessation of his position as Managing Director. . ….. (31)
Code of Criminal Procedure (V of 1898)
Section 561A
Instead of quashing the proceedings in the two cases the trial court shall dispose of the same keeping in mind the observations and findings by this Court in order to avoid conflicting decisions and multiplicity of judicial proceedings. . ….. (39)
Negotiable Instruments Act (XXVI of 1881)
Section 138
Since the transfer of share has been approved by the company and duly notified to the Registrar of Joint Stock Companies before the date of issuance of the cheques in question, the accused had no authority to sign any cheque on behalf of the company at the relevant time as he was nobody to the company. These facts leave no manner of doubt to find that on the date the offence was committed by the company and since at that relevant time the petitioner was not the Managing Director, he had nothing to do with the affairs of the company. No ingredients of Section 138 of the Act attracts the accused to be tried in a criminal prosecution. …..(36)
Mohammad Eusof Babu vs State, 4 CLR (AD) 70 = 68 DLR (AD) 298 and Majed Hossain vs State, 17 BLC (AD) 177 ref.
Tanvir Ahmed AI-Amin, Advocate-For the Accused-Petitioner in all the cases.
AM Mahbubuddin with Saqeb Mahbub, Advocates-For tile Opposite Party No.2 in all the cases.
AKM Zairirul Hut[ DAG with M Masud Alam Chowdhury, Sathi Shahjahall and Md Hatem AIi, AAGs- For the State.
Judgment
Mahmudul Hoque J : These five Rules are taken up for joint consideration and for disposal given that this pertain to the same petitioner and involved common issues of law as shall need be addressed for the disposal of the Rules.
2. In Criminal Miscellaneous Case No. 13689 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Sessions Case No. 6387 of 2011 arising out of CR Case No. 16 of 2011 (North) now pending in the 6th Court of Joint Metropolitan Sessions Judge, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
3. Facts, in short, are that the complainant and the accused petitioner were known to each other. In consideration of relationship, the complainant paid Taka 50,00,000 (Taka fifty lac) to the accused petitioner for purchase of shares in Seus Fabrics Limited. The accused petitioner failed to transfer any share to the complainant. Resultantly, the accused petitioner issued a cheque dated 20-10-2010 for the payment of aforesaid amount in favour of the complainant. The complainant presented the said cheque lo the bank on 20-12-2010 for encashment but the same was dishonoured for insufficient fund. Thereafter, the complainant served a legal notice upon the accused petitioner on 30-122010 demanding payment of the money, but he failed to comply with the demand so made in the legal notice. Consequently, the complainant filed the complaint under section 138 of the Negotiable Instruments Act, before the Metropolitan Magistrate, Dhaka which was registered as CR Case No. 16 of 2011. The said CR case was transferred to the Melro Sessions Judge, Dhaka, wherein it was registered as Metro Session Case No. 6387 of 2011. Thereafter, the case was transferred to the Joint Metropolitan Sessions Judge, 6th Court, Dhaka for trial and disposal.
4. In Criminal Miscellaneous Case No. 13690 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Special Session Case No. 11 of 2011 arising out of CR Case No. 821 of 2010 (North) now pending in the court of Special Sessions Judge, Court No.5, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
5. Short facts, of the case are that the complainant supplied huge amount of machineries and spare parts to the accused petitioner on credit. The accused petitioner issued a cheque dated 10-11-2009 for Taka 28,00,600 (Taka twenty eight lac and nine hundred) to the complainant in the name of his proprietorship firm “NEW BOILER PARTS” for payment of the said dues. The complainant presented the said cheque for encashment to the bank but was dishonoured for insufficient fund. Thereafter, the complainant served a legal notice dated 26-1-2010 upon the accused petitioner under Section 138 of the Negotiable Instruments Act, demanding payment of the money mentioned in the said cheque but the petitioner failed to comply with the demand. Consequently, the complainant filed CR Case No. 821 of 2010 before the learned Chief Metropolitan Magistrate, Dhaka. The said CR case was transferred to the Metro Sessions Judge, Dhaka who again transferred the case to the Special Sessions Judge, 5th Court, Dhaka for trial wherein it was registered as Special Session Case No. 11 of 2011.
6. In Criminal Miscellaneous Case No. 21685 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 3862 of 2011 arising out of CR Case No. 3624 of 2010, now pending in the court of Joint Metropolitan Sessions Judge, 5th Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881 should not be quashed.
7. Short facts, for disposal, of the case are that the complainant for the purpose of purchasing shares in Seus Fabrics Limited paid an amount of Taka 35,00,000 (Taka thirty-five lac) to the accused petitioner, but he failed to provide any share to the complainant for which he issued a cheque dated 3-9-2010 for Taka 35,00,000 (Taka thirty five lac) to the complainant for payment of the said amount. The complainant presented the said cheque for encashment to the concern bank, but it was dishonoured for the reason of insufficient fund. Thereafter, the complainant served a legal notice dated 28-10-2010 upon the accused petitioner stating the facts of dishonor of the cheque and demanding payment of the said amount, but the accused petitioner failed to pay the money demanded by the complainant. Consequently, the complainant filed CR Case No. 3624 of 2010 before the learned Metropolitan Magistrate Dhaka against the accused petitioner under Section 138 of the Negotiable Instruments Act 1881. The said case was transferred to the Metropolitan Sessions Judge, 5th Court, Dhaka wherein it was registered as Metro Sessions Case No. 3862 of 2011. Thereafter, it was again transferred to the 5th Court of Joint Metropolitan Sessions Judge, Dhaka for trial.
8. In Criminal Miscellaneous Case No. 21686 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 3493 of 2011 arising out of CR Case No. 21 of 2011 (North), now pending in the court of Joint Metropolitan Sessions Judge. 5th Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
9. Short facts, of the case are that the complainant supplied salt and soda to the accused petitioner on credit. For payment of the amount against salt and soda the accused petitioner issued a cheque dated 20-8-2010 for Taka 15,00,000 (Taka fifteen lac) to the complainant in the name of his proprietorship firm “M/s Rassel Enterprise”. The complainant presented the said cheque for encashment, but it was dishonoured by the bank for insufficient fund. Thereafter, on 22-11-2010 the complainant served a legal notice upon the accused petitioner informing the fact of dishonour of the cheque and demanding payment of the money mentioned in the cheque in question but the petitioner failed to make payment of the amount. Consequently, the complainant filed CR Case No. 21 of 2011 before the learned Chief Jt Metropolitan Magistrate, Dhaka under Section 138 of the Negotiable Instruments Act, against the accused petitioner which was transferred to the Metropolitan Sessions Judge, Dhaka, wherein it was registered as Metro Session Case No. 3493 of 2011. The case was again transferred to the 5th Court of Joint Metropolitan Sessions Judge, Dhaka for trial.
10. In Criminal Miscellaneous Case No. 21687 of 2012, Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 2449 of 2011 arising out of CR Case No. 3516 of 2010 (North), now pending in the court of Joint Metropolitan Sessions Judge, 2nd Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
(To be continued)
(Criminal Miscellaneous Jurisdiction)
Farah Mahbub J
Mahmudul Hoque J
Shahidul Islam (Md)……………..Accused-Petitioner (in all the cases)
Vs
State and another………Opposite-Parties (in all the cases)
Judgment
February 5th, 2018
Code of Criminal Procedure (V of 1898)
Section 561A
In an appropriate case, if on the face of the document which are beyond suspicion or doubt, placed by accused and not disputed by the prosecution the accusation against him cannot stand, for, it would be travesty of justice, if the accused is relegated to trial and he is asked to prove his defence before the trial court. .. …. (34)
Code of Criminal Procedure (V of 1898)
Section 561A
For the ends of justice or to prevent injustice or abuse of process of the court, this Court may look into the materials submitted by the parties, which have significant bearing on the matter at prima facie stage. . ….. (35)
Code of Criminal Procedure (V of 1898)
Section 561A
A director whose share transfer has been approved and accepted by the company and that has been duly notified to the Registrar of Joint Stock Companies cannot be made accountable and fastened with liability for anything done by the company after the transfer of his entire shares and cessation of his position as Managing Director. . ….. (31)
Code of Criminal Procedure (V of 1898)
Section 561A
Instead of quashing the proceedings in the two cases the trial court shall dispose of the same keeping in mind the observations and findings by this Court in order to avoid conflicting decisions and multiplicity of judicial proceedings. . ….. (39)
Negotiable Instruments Act (XXVI of 1881)
Section 138
Since the transfer of share has been approved by the company and duly notified to the Registrar of Joint Stock Companies before the date of issuance of the cheques in question, the accused had no authority to sign any cheque on behalf of the company at the relevant time as he was nobody to the company. These facts leave no manner of doubt to find that on the date the offence was committed by the company and since at that relevant time the petitioner was not the Managing Director, he had nothing to do with the affairs of the company. No ingredients of Section 138 of the Act attracts the accused to be tried in a criminal prosecution. …..(36)
Mohammad Eusof Babu vs State, 4 CLR (AD) 70 = 68 DLR (AD) 298 and Majed Hossain vs State, 17 BLC (AD) 177 ref.
Tanvir Ahmed AI-Amin, Advocate-For the Accused-Petitioner in all the cases.
AM Mahbubuddin with Saqeb Mahbub, Advocates-For tile Opposite Party No.2 in all the cases.
AKM Zairirul Hut[ DAG with M Masud Alam Chowdhury, Sathi Shahjahall and Md Hatem AIi, AAGs- For the State.
Judgment
Mahmudul Hoque J : These five Rules are taken up for joint consideration and for disposal given that this pertain to the same petitioner and involved common issues of law as shall need be addressed for the disposal of the Rules.
2. In Criminal Miscellaneous Case No. 13689 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Sessions Case No. 6387 of 2011 arising out of CR Case No. 16 of 2011 (North) now pending in the 6th Court of Joint Metropolitan Sessions Judge, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
3. Facts, in short, are that the complainant and the accused petitioner were known to each other. In consideration of relationship, the complainant paid Taka 50,00,000 (Taka fifty lac) to the accused petitioner for purchase of shares in Seus Fabrics Limited. The accused petitioner failed to transfer any share to the complainant. Resultantly, the accused petitioner issued a cheque dated 20-10-2010 for the payment of aforesaid amount in favour of the complainant. The complainant presented the said cheque lo the bank on 20-12-2010 for encashment but the same was dishonoured for insufficient fund. Thereafter, the complainant served a legal notice upon the accused petitioner on 30-122010 demanding payment of the money, but he failed to comply with the demand so made in the legal notice. Consequently, the complainant filed the complaint under section 138 of the Negotiable Instruments Act, before the Metropolitan Magistrate, Dhaka which was registered as CR Case No. 16 of 2011. The said CR case was transferred to the Melro Sessions Judge, Dhaka, wherein it was registered as Metro Session Case No. 6387 of 2011. Thereafter, the case was transferred to the Joint Metropolitan Sessions Judge, 6th Court, Dhaka for trial and disposal.
4. In Criminal Miscellaneous Case No. 13690 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Special Session Case No. 11 of 2011 arising out of CR Case No. 821 of 2010 (North) now pending in the court of Special Sessions Judge, Court No.5, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
5. Short facts, of the case are that the complainant supplied huge amount of machineries and spare parts to the accused petitioner on credit. The accused petitioner issued a cheque dated 10-11-2009 for Taka 28,00,600 (Taka twenty eight lac and nine hundred) to the complainant in the name of his proprietorship firm “NEW BOILER PARTS” for payment of the said dues. The complainant presented the said cheque for encashment to the bank but was dishonoured for insufficient fund. Thereafter, the complainant served a legal notice dated 26-1-2010 upon the accused petitioner under Section 138 of the Negotiable Instruments Act, demanding payment of the money mentioned in the said cheque but the petitioner failed to comply with the demand. Consequently, the complainant filed CR Case No. 821 of 2010 before the learned Chief Metropolitan Magistrate, Dhaka. The said CR case was transferred to the Metro Sessions Judge, Dhaka who again transferred the case to the Special Sessions Judge, 5th Court, Dhaka for trial wherein it was registered as Special Session Case No. 11 of 2011.
6. In Criminal Miscellaneous Case No. 21685 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 3862 of 2011 arising out of CR Case No. 3624 of 2010, now pending in the court of Joint Metropolitan Sessions Judge, 5th Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881 should not be quashed.
7. Short facts, for disposal, of the case are that the complainant for the purpose of purchasing shares in Seus Fabrics Limited paid an amount of Taka 35,00,000 (Taka thirty-five lac) to the accused petitioner, but he failed to provide any share to the complainant for which he issued a cheque dated 3-9-2010 for Taka 35,00,000 (Taka thirty five lac) to the complainant for payment of the said amount. The complainant presented the said cheque for encashment to the concern bank, but it was dishonoured for the reason of insufficient fund. Thereafter, the complainant served a legal notice dated 28-10-2010 upon the accused petitioner stating the facts of dishonor of the cheque and demanding payment of the said amount, but the accused petitioner failed to pay the money demanded by the complainant. Consequently, the complainant filed CR Case No. 3624 of 2010 before the learned Metropolitan Magistrate Dhaka against the accused petitioner under Section 138 of the Negotiable Instruments Act 1881. The said case was transferred to the Metropolitan Sessions Judge, 5th Court, Dhaka wherein it was registered as Metro Sessions Case No. 3862 of 2011. Thereafter, it was again transferred to the 5th Court of Joint Metropolitan Sessions Judge, Dhaka for trial.
8. In Criminal Miscellaneous Case No. 21686 of 2012 Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 3493 of 2011 arising out of CR Case No. 21 of 2011 (North), now pending in the court of Joint Metropolitan Sessions Judge. 5th Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
9. Short facts, of the case are that the complainant supplied salt and soda to the accused petitioner on credit. For payment of the amount against salt and soda the accused petitioner issued a cheque dated 20-8-2010 for Taka 15,00,000 (Taka fifteen lac) to the complainant in the name of his proprietorship firm “M/s Rassel Enterprise”. The complainant presented the said cheque for encashment, but it was dishonoured by the bank for insufficient fund. Thereafter, on 22-11-2010 the complainant served a legal notice upon the accused petitioner informing the fact of dishonour of the cheque and demanding payment of the money mentioned in the cheque in question but the petitioner failed to make payment of the amount. Consequently, the complainant filed CR Case No. 21 of 2011 before the learned Chief Jt Metropolitan Magistrate, Dhaka under Section 138 of the Negotiable Instruments Act, against the accused petitioner which was transferred to the Metropolitan Sessions Judge, Dhaka, wherein it was registered as Metro Session Case No. 3493 of 2011. The case was again transferred to the 5th Court of Joint Metropolitan Sessions Judge, Dhaka for trial.
10. In Criminal Miscellaneous Case No. 21687 of 2012, Rule was issued under Section 561A of the Code of Criminal Procedure at the instance of the accused petitioner calling upon the opposite parties to show cause as to why the proceedings in Metro Session Case No. 2449 of 2011 arising out of CR Case No. 3516 of 2010 (North), now pending in the court of Joint Metropolitan Sessions Judge, 2nd Court, Dhaka under Section 138 of the Negotiable Instruments Act 1881, should not be quashed.
(To be continued)
