High Court Division :
(Criminal Miscellaneous Jurisdiction)
AKM Asaduzzaman J
Md Ashraful Kamal J
Judgment
July 20th, 2011
Ferdous Khan (Md)……..Petitioner
Vs
State and others……..Opposite-Parties
Negotiable Instruments Act (XXVI of 1881)
Section 138
Legislature do not intent to serve notice one after another, in fact any one form therein is enough to serve the notice if it is found to be served properly as per law, in the premises if the notice returned unserved when it is served through registered post it is enough, and to be held as good service and thus it is not the legislative mandate to publish the notice in the daily newspaper again for drawing attention to the drawer to the cheque. ….(9)
None appears-For the Petitioner.
Bashir, Ahmed, AAG-For the Opposite-Party No.1.
Md Hamidur Rahman. Advocate – For the Opposite-
Party No. 2.
No one appears-For the Petitioner.
Judgement
AKM Asaduzzaman J : On an application under” section 561A of the Code of Criminal Procedure this rule was issued calling upon the opposite parties to show cause as to why the proceeding of Sessions Case No. 357 of 2006 arising out of CR Case No. 121 of 2006 under section 138 of the Negotiable Instruments Act, 1881 (As amended in 2006) now pending in the Court of District & Sessions Judge Gazipur should not be quashed.
2. Facts for disposal of the rule are that on 4-5-2006 one, Md Akramul Hoque as opposite party No.2 an Officer of Mir Cement Ltd. filed a petition of complaint before the Court of learned Magistrate, First Class, Cognizance Court No.2 Gazipur against the petitioner alleging that there are businesses between the parties that the accused-petitioner as a’ wholesaler purchase cement from the complainant on credit and sold those in this purchase cement from the complaint on’ credit and sold those in his shop, that the Accused-petitioner gave a cheque on 18-10-2005 being No. 7254048 in his Current account of Pubali Bank Ltd., Tongi Branch, Gazipur, being Current Account No. 4317 an amount of Taka 25,00,000 to the complainant that the complainant produced cheque’ for’ encashment on’ 13-4-2006 which was dishonoured with a comment “insufficient fund” that the complainant ‘send a legal notice to the’ accused-petitioner ‘With Registered Post allowing 30 days time to ‘pay the amount Taka 25,00,000 as in cash, that the accused-petitioner refused the aforesaid legal notice on 19-4-2006 and the complainant lastly demanded for payment on 20-4-2006 but the petitioner committed offence under section 138 of the Negotiable Instruments Act, 1881 refusing to pay and hence the case.
3. After receiving the said petition of complainant the learned Sessions Judge, Gazipur took cognizance against the petitioner .on 19-9-2006 under section 138 of the Negotiable/Instruments Act, 1881 (As amended in 2006) and issues process against the petitioner. Thereafter the petitioner .surrendered before the Court and got bail wherefrom, thereafter by the order dated 11-6-2007 the learned Sessions Judge framed charge against the petitioner under section 138 of the Negotiable Instruments Act, 1881. Thereafter the petitioner filed an application before the Hon’ble High Court and obtained the instant rule on the submission that as per amendment made in the Negotiable Instrument Act it was stated that the notice if returned unserved it has to ‘be served through the newspaper but no such publication of the newspaper was made in the case and such provision of the Negotiable Instrument has not been complied with the petition of complaint suffers from illegally since the procedure not been complied with and thus the. same should be quashed.
4. . This matter came up in the list ‘with the name of the learned advocate for the petitioner for long time but no one appears to press this rule.
5. Mr Md Hamidur Rahman, the learned advocate appearing for the opposite party No.2 on drawing our attention ,to the amendment provision of section 138 sub-section l(a) of the Negotiable Instrument Act submits that the manner of service as being incorporated by amendment in section 138 of the Negotiable Instruments Act in 3 different forms, are alternative to each other as well as not conjunctive, actually th~ legislature intent to serve the notice any of the J form mention in the clause ABC of section 138 of the Negotiable Instruments Act and, as such, the rule obtained on the submission of the learned advocate for the petitioner itself has got no merits and accordingly the rule is liable to be discharged.
6. Heard the learn1ed Advocate for the opposite party No. 2 and perused the record together with the relevant provision of law.
7. Perusing the rule issuing order it appears that mainly the rule was issued for quashing the proceedings on the submission that the instant criminal proceeding was initiated :not complied of mandatory provision of law as provided under section l(a) of section 138 of the Negotiable Instrument Act.
8. In the premises we like to see the amendment provision of law as led down in section 138 of the NI Act, which runs as follows:
138. Dishonour of cheque for insufficiency, etc. of funds in the account-[1] where any cheque drawn by a person on an account maintained, by him with a banker for payment of any amount of-money to another person from out of that account [* * * * * *] is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year with fine which may extend to [thrice] the amount of the cheque or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
The notice required to be served under clause (b) of sub-section (1) shall be served in the following manner-
(a) …………….
(b) by sending it by Registered Post with acknowledgement due to that person at his usual or last known place of abode or business in Bangladesh; or
(c) by publication in a daily Bangla national newspaper having wide circulation.”
9. Perusal of the above provision of law it appears that the legislature intents to serve a
notice required under the law upon the drawer with the drawer of the cheque in the stated 3 manner as stated in clause (a)(b)(c) by way of delivery the said notice or person on which served or by sending the said notice by ‘Registered Post when with acknowledgment to the person or by published in the daily Bangia National newspaper having wide circulation. On perusal of this provision of law it is crystal clear that the legislature do not intent to serve notice one after another, in fact anyone form therein is enough to serve the notice if it is found to be served properly as per Jaw, in the premises if the notice returned unserved when it is served through registered post it is enough, and to be held as good service and thus it is not the legislative mandate to publish the said notice in the daily newspaper again for drawing attention to the drawer of the cheque.
10. Considering the above said legal position of the case we find no merits in this rule which call for any interference by this court.
11. In the result the rule is discharged and the order of stay granted earlier by this court is vacated.
Communicate the order at once.
(Criminal Miscellaneous Jurisdiction)
AKM Asaduzzaman J
Md Ashraful Kamal J
Judgment
July 20th, 2011
Ferdous Khan (Md)……..Petitioner
Vs
State and others……..Opposite-Parties
Negotiable Instruments Act (XXVI of 1881)
Section 138
Legislature do not intent to serve notice one after another, in fact any one form therein is enough to serve the notice if it is found to be served properly as per law, in the premises if the notice returned unserved when it is served through registered post it is enough, and to be held as good service and thus it is not the legislative mandate to publish the notice in the daily newspaper again for drawing attention to the drawer to the cheque. ….(9)
None appears-For the Petitioner.
Bashir, Ahmed, AAG-For the Opposite-Party No.1.
Md Hamidur Rahman. Advocate – For the Opposite-
Party No. 2.
No one appears-For the Petitioner.
Judgement
AKM Asaduzzaman J : On an application under” section 561A of the Code of Criminal Procedure this rule was issued calling upon the opposite parties to show cause as to why the proceeding of Sessions Case No. 357 of 2006 arising out of CR Case No. 121 of 2006 under section 138 of the Negotiable Instruments Act, 1881 (As amended in 2006) now pending in the Court of District & Sessions Judge Gazipur should not be quashed.
2. Facts for disposal of the rule are that on 4-5-2006 one, Md Akramul Hoque as opposite party No.2 an Officer of Mir Cement Ltd. filed a petition of complaint before the Court of learned Magistrate, First Class, Cognizance Court No.2 Gazipur against the petitioner alleging that there are businesses between the parties that the accused-petitioner as a’ wholesaler purchase cement from the complainant on credit and sold those in this purchase cement from the complaint on’ credit and sold those in his shop, that the Accused-petitioner gave a cheque on 18-10-2005 being No. 7254048 in his Current account of Pubali Bank Ltd., Tongi Branch, Gazipur, being Current Account No. 4317 an amount of Taka 25,00,000 to the complainant that the complainant produced cheque’ for’ encashment on’ 13-4-2006 which was dishonoured with a comment “insufficient fund” that the complainant ‘send a legal notice to the’ accused-petitioner ‘With Registered Post allowing 30 days time to ‘pay the amount Taka 25,00,000 as in cash, that the accused-petitioner refused the aforesaid legal notice on 19-4-2006 and the complainant lastly demanded for payment on 20-4-2006 but the petitioner committed offence under section 138 of the Negotiable Instruments Act, 1881 refusing to pay and hence the case.
3. After receiving the said petition of complainant the learned Sessions Judge, Gazipur took cognizance against the petitioner .on 19-9-2006 under section 138 of the Negotiable/Instruments Act, 1881 (As amended in 2006) and issues process against the petitioner. Thereafter the petitioner .surrendered before the Court and got bail wherefrom, thereafter by the order dated 11-6-2007 the learned Sessions Judge framed charge against the petitioner under section 138 of the Negotiable Instruments Act, 1881. Thereafter the petitioner filed an application before the Hon’ble High Court and obtained the instant rule on the submission that as per amendment made in the Negotiable Instrument Act it was stated that the notice if returned unserved it has to ‘be served through the newspaper but no such publication of the newspaper was made in the case and such provision of the Negotiable Instrument has not been complied with the petition of complaint suffers from illegally since the procedure not been complied with and thus the. same should be quashed.
4. . This matter came up in the list ‘with the name of the learned advocate for the petitioner for long time but no one appears to press this rule.
5. Mr Md Hamidur Rahman, the learned advocate appearing for the opposite party No.2 on drawing our attention ,to the amendment provision of section 138 sub-section l(a) of the Negotiable Instrument Act submits that the manner of service as being incorporated by amendment in section 138 of the Negotiable Instruments Act in 3 different forms, are alternative to each other as well as not conjunctive, actually th~ legislature intent to serve the notice any of the J form mention in the clause ABC of section 138 of the Negotiable Instruments Act and, as such, the rule obtained on the submission of the learned advocate for the petitioner itself has got no merits and accordingly the rule is liable to be discharged.
6. Heard the learn1ed Advocate for the opposite party No. 2 and perused the record together with the relevant provision of law.
7. Perusing the rule issuing order it appears that mainly the rule was issued for quashing the proceedings on the submission that the instant criminal proceeding was initiated :not complied of mandatory provision of law as provided under section l(a) of section 138 of the Negotiable Instrument Act.
8. In the premises we like to see the amendment provision of law as led down in section 138 of the NI Act, which runs as follows:
138. Dishonour of cheque for insufficiency, etc. of funds in the account-[1] where any cheque drawn by a person on an account maintained, by him with a banker for payment of any amount of-money to another person from out of that account [* * * * * *] is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year with fine which may extend to [thrice] the amount of the cheque or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
The notice required to be served under clause (b) of sub-section (1) shall be served in the following manner-
(a) …………….
(b) by sending it by Registered Post with acknowledgement due to that person at his usual or last known place of abode or business in Bangladesh; or
(c) by publication in a daily Bangla national newspaper having wide circulation.”
9. Perusal of the above provision of law it appears that the legislature intents to serve a
notice required under the law upon the drawer with the drawer of the cheque in the stated 3 manner as stated in clause (a)(b)(c) by way of delivery the said notice or person on which served or by sending the said notice by ‘Registered Post when with acknowledgment to the person or by published in the daily Bangia National newspaper having wide circulation. On perusal of this provision of law it is crystal clear that the legislature do not intent to serve notice one after another, in fact anyone form therein is enough to serve the notice if it is found to be served properly as per Jaw, in the premises if the notice returned unserved when it is served through registered post it is enough, and to be held as good service and thus it is not the legislative mandate to publish the said notice in the daily newspaper again for drawing attention to the drawer of the cheque.
10. Considering the above said legal position of the case we find no merits in this rule which call for any interference by this court.
11. In the result the rule is discharged and the order of stay granted earlier by this court is vacated.
Communicate the order at once.
