High Court Division
(Criminal Miscellaneous Jurisdiction)
Md Rezaul Hasan J
Kashefa Hussain J
Nurul Islam …………………
…….. …………….Accused-Petitioner
vs
State and another ………..
………. Opposite-Parties
Judgment
June 6th, 2016
Penal Code (XLV of 1860)
Sections 406 and 420
Negotiable Instruments Act (XXVI of 1881)
Section 138
The offence committed under Sections 420 and 406 are totally different from one committed under Section 138(1) of the Negotiable Instruments Act, 1881, while the ingredients as well as the reliefs and punishments provided for, under two laws are different. Section 138(2) provides for imposing fine and to pay fine, to the extent of face value of the dishonoured cheque, to the ‘payee’/ complainant. Section 138B provides for depositing not less than 50% of the dishonoured cheque in the trial court, for preferring appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881. There is no such provision under Section 420 or 406 of the Penal Code. Besides, joinder of offence committed under Section 138(1) of the Negotiable Instruments Act is not permitted with one committed under the Penal Code. .. …. (8)
Penal Code (XLV of 1860)
Sections 406 and 420
General Clauses Act (X of 1897)
Section 26
Impugned proceeding, filed under Sections 420/406, is pending before the trial Court and no order of conviction has yet been recorded. Therefore, section 403 of the Code of Criminal Procedure is not applicable. On the other hand, Section of General Clauses Act is not applicable in the facts and circumstances present case, in as much as, Section 26 bars punishment twice for committing the same offence, but it does not bar prosecution or conviction for committing the same offence. . ….. (7)
MA Sukkur vs Md Zahirul Hoque, 23 BLT (AD) 76; Md Nurul Islam vs State, 1997 BLD 498 = 49 DLR 464; Akamuddin Ahmed vs State, 27 DLR (AD) 175 ; Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu, 46 DLR (AD) 180, and Sheikh Mashuk Rahman vs State, 62 DLR 28 ref.
KM Reyad Salimullah. Advocate-For the Accused Petitioner.
Md Ali Zinnah, with Osman Gani Khan, AAG-For the State.
Khurshid Alam Khan and Dr Md Bashirullah Advocates-For the Opposite Party No.2.
Judgment
Md Rezaul Hasan J : This petition filed under Section 561A of Code of Criminal Procedure (CrPC), a Rule has been issued calling upon the opposite parties to show cause as to why the proceeding of CR Case No. 1347 of 2013, under Sections 420/406 of the Penal Code, 1860, now pending before the learned Chief Metropolitan Magistrate, Dhaka should not be quashed and/or such other or further order or orders passed as to this Court may deem fit and proper.
2. The facts leading to the issuance of the Rule, in brief, are that, the opposite party No.2 as complainant petitioner has filed a petition, on 2-10-2013, before the Chief Metropolitan Magistrate, Dhaka, under Sections 420/406 of the Penal Code, which has been registered as CR Case No. 1347 of 2013. After taking cognizance by an order dated 2-10-2013, after examination of the complainant under Section 200 of the Code of Criminal Procedure the said complainant petition was filed on the allegation that stating inter-alias that, after taking money under a contract from the complainant the accuse-petitioner did not return the money. Under the said contract the accused petitioner took Taka 44,85,372 from the complainant; against which the petitioner issued an account payee cheque being No. 4843525, dated 30-6-2013, of Shahjalal Islami Bank, Gulshan South Avenue Branch,. Dhaka. Thereafter, complainant deposited the said cheque in his account on 11-7-2013 which was returned on 11-7-2013 for insufficient of fund. Complainant informed this matter to· the petitioner, who did not pay any heed. Against this matter the complainant lodged a GD being No. 1642 dated 26-9-2013 with Gulshan Police Station. Despite repeated requests by the complainant the petitioner did not repay the money and thereby defrauded the complainant. At this stage, the complainant, through his lawyer, sent a legal notice to the petitioner on 22-8-2013 giving 7 (seven) time to repay the money. The petitioner replied to the said notice on 29-8-2013. For not paying the said money to the complaint and also on the allegations of defrauding him, the complainant filed the complaint petition, mentioned above. Hence, this is case. Certified copy of the said complainant petition is annexed hereto and marked as Annexure-‘ A’. It is further appears from record that, charge has been framed against the accused. At this stage the accused petitioner has filed this petition and obtained the instant Rule. It also appears from the record that the opposite party No.2, as complainant has, also filed a petition under Section 138 of the Negotiable Instruments Act, 1881, before the Chief Metropolitan Magistrate, Dhaka, which has been registered as CR Case No. 1597 of 2013, on 24-11-2013. The proceedings of CR No. 1347 of 2013 filed under Sections 420/406 of the Penal Code, 1860 has been challenged, by filing this application under Section 561 A, whereupon the instant Rule was issued.
3. The learned Advocate Mr KM Reyad Salimullah appeared for the accused-petitioner. He has placed the petition along with the materials on records. He, first of all submits that the impugned proceedings has been filed in violation of the provisions of Section 26 of the General Clauses Act, as well as in violation of the Section 403 of the Code of Criminal Procedure. Referring to the provisions, of Section 26 of the General Clauses Act, the learned Advocate submits that the accused-petitioner should not be prosecuted twice for committing the same offences. He also submits that the complaint petition does not disclose ingredient of Sections 406/420 of the Penal Code, 1860, and, as such, the impugned proceedings amounts to abuse of the processes of the Court. He next pointed out that, since the petitioner has filed a case under Section 138(1) of the Negotiable Instruments Act, being CR Case No. 1597 of 2013, therefore, this case under Sections 420/406 being CR Case No. 1347 of 2013 has been filed only to harass the accused petitioner and this amounts to abuse of the process of the Court. Therefore, he submits that the CR Case No.1347 of 2013, filed under Sections 420/406 of the Penal Code, amounts to abuse of the process of the Court below and the same is liable to be quashed by making the Rule absolute. In support of his contention the learned Advocate has relied upon a decision reported in 23 BLT (AD) 76: MA Sukkur vs Md Zahirul Hoque and another.
4. The learned Advocate Mr Khurshid Alam Khan appeared for the complainant opposite party No.2. He submits that the case under Section 138(1) of the Negotiable Instruments Act, 1881, registered as CR case 1347 of 2013, was filed on 24-11-2013 for dishonour of the cheque. He continues that the ingredients of Section 138(1) of the Negotiable Instruments Act, 1881, is totally different from the ingredients of offence under Sections 415 and 405 of the Penal Code. On a mere perusal and comparison of the provisions of Section 138(1) of the Negotiable Instruments Act and the definitions given under sections 415 and 405 of the Penal Code, makes clear that the ingredients of these offences are totally different.
He also submits that the offence under the Negotiable Instruments Act provides for different remedy, in particular, it make provision to pay an amount imposed as fine to the complainant, vide sub-section (2) of Section 138 of the Negotiable Instruments Act. But, there is no such provision to realize fine and to pay of the complainant opposite party, under Section 420 or 406 of the Penal Code, he points out. He further adds that, the offence committed under Section 138(1) of the Negotiable Instruments Act cannot be joined in the same case filed under Sections 420/406 of Penal Code in as much as the Negotiable Instruments Act, 1881, is a special law, as has been recorded in several judgments of our apex court. As such, he summarises, that, there is no bar in filing these two Criminal Cases, one under Section 138(1) of the Negotiable Instruments Act and another under Sections 420/406 of Penal Code, in much as the ingredients are different as well as the punishments provided under two law are different, Even, he continues, complainant opposite party is entitled to file a civil suit for recovery of money and it has also been held in a series eases decided by the apex court that the criminal case stands for punishment, while the civil suit is filed for recovery of money and both can stand together. Filing of one does not preclude initiation or continuation of another. In support of his contention that a case under Sction 138 (1) of the Negotiable Instruments Act, can be filed concurrently with a case under Sctions 420/406 of the Penal Code, the learned Advocated has cited before us a decision reported in 1997 BLD 498 : Md Nurul Islam vs State. He has also placed before us two others decisions reported in 27 DLR (AD), 175 and 46 DLR (AD) 180 s both these cases have cited in the decisions reported in 1997 BLD 498. Next, referring to the decision cited by the learned Advocate for the petitioner i.e. 23 BLT (AD) 76, the learned Advocate submits that the facts and circumstances of the present case and of the case reported in 23 BLT (AD) are totally different and, as such, the decision reported in 23 BLT (AD) 76 is liable to be distinguished. He, accordingly, concludes submitting that, this Rule has no merit and it is a mere dilatory tactics and the Rule is liable to be discharged.
5. Facts leading to issuance of the Rule has been stated, herein above, in brief.
6. We have heard the learned Advocates for the both sides and perused the complainant petition which has been annexed and annexure ‘B’. The averments made in that petition, if considered as correct and in their totality, the same discloses offences under Sections 420/406 of the Penal Code.
7. On the one hand, the impugned proceeding, filed under Sections 420/406, is pending before the trial Court and no order of conviction has yet been recorded. Therefore, section 403 of the Code of Criminal Procedure is not applicable. On the other hand, Section of General Clauses Act is not applicable in the fact and circumstances present case, in as much as, Section 26 bars punishment twice for committing the same offence, but it does not bar prosecution or conviction for committing the same offence.
8. Provisions of to Article 35 of the Constitution are totally foreign to the facts and circumstances of the instant case. Article 35 provides that-
“(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.
2) “No person shall be prosecuted and punished for the same offence more than once.”
But in the case before us, the offence committed under Sections 420 and 406 are totally different from one committed under Section 138(1) of the Negotiable Instruments Act, 1881, while the ingredients as, well as, the reliefs and punishments provided for, under two laws are different. Section 138(2) provides for imposing fine and to pay fine, to the extent of face value of the dishonoured cheque, to the ‘payee’/complainat. Section 138B provides for depositing not less than 50% of the dishonoured cheque in the trial court, for preferring appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881. There is no such provision under Section 420 or 406 of the Penal Code. Besides, joinder of offence committed under Section 138(1) of the Negotiable Instruments Act is not permitted with one committed under the Penal Code.
9. Similar view has been taken in the case reported in 1997 BLD 498 wherein it has been held that “Section 138 of the Negotiable Instruments (Amendment) Act, is for dishonour of a cheque simpliciter for insufficiency of fund whereas an offence under Section 420 of the Penal Code is for cheating a person. The two offences are two distinct offences under the different laws. The rule of law about the peremptory application of the special law in preference to the general law for trial of an offence under Section 420 of the Penal Code has no application in the instant case. The learned Magistrate committed no illegality in taking cognizance of the case under Section 420 of the Penal Code. The institution of a money suit for realization of the money in question does not debar the prosecution from proceeding with the criminal case.”
We do not find any reason to differ from 1997 BLD 498: Md Nurul Islam vs State. Identical view has also been taken in 49 DLR 464: Nurul Islam vs State and in 62 DLR 28: Sheikh Mashuk Rahman vs Stale.
10. Moreover, the Negotiable Instruments Act is a special law and has been recorded in several judgments passed by our apex court.
11. Finally we have turned our attention to the 23 BLT (AD) 76: MA Sukkur vs Md Zahirul Haque.
12. In this case the charge was framed under Section 420 alone. But, it has neither been motted, nor been decided, in this case as to whether Negotiable Instruments Act case is or is not maintainable for filing a case under Sections 420/ 406. As such, we find submission of the learned Advocate for the complainant opposite party that the case reported in 23 BLT (AD) 76 is not applicable to the facts and circumstances of the instant case and it liable to be distinguished.
In view of the deliberation recorded herein above, we find no merit in this Rule.
Order
In the result the Rule is hereby discharged.
The order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
This is an old case of 2013. The concerned Court is directed to dispose up this matter within 60 working days after receiving copies of this judgment and order.
Send down the copy of the judgment and order to the concerned Court.
