Appellate Division
Criminal
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
AHM Shamsuddin
Choudhury J
Sahab Uddin (Md)…………Petitioner
Vs
State and another………….Respondents
Negotiable Instruments Act (xxv of 1881)
Section 138
If a holder or the payee gets hold of a dishonoured cheque by any illegal means the drawer of the cheque shall have the liberty to take such defence during the trial. ……(9)
Arif-uz-Zaman (Md) vs State, 17 BLC (AD) 176=21 BLT (AD) 234 ref.
Md Aftab Hossain, Advocate-on-Record-For the Petitioner.
B. Hossain, Advocate-on-Record-For Respondent No.1.
ASM Abdul Mobin, Advocate instated by Mrs Sufia Khatun, Advocate-on-Record-For Respondent No. 2.
Judgment
Md Abdul Wahhab Miah J: The accused has filed this petition for leave to appeal against the judgment and order dated the 30th day of May, 2010 passed by the High Court Division in Criminal Miscellaneous Case No. 23880 of 2009 discharging the Rule.
2. Facts necessary for disposal of this petition are that respondent No.2, Md. Shamsul Alam as complainant (hereinafter referred to as the complainant) filed a petition of complaint before the Additional Chief Metropolitan Magistrate, Chittagong, under Section 138 of the Negotiable Instruments Act, 1881 (the Act, 1881), alleging, inter alia, that in order to repay a loan due to him, the accused issued three cheques in his favour.
All the cheques were drawn on Islami Bank Bangladesh Ltd., Chawk Bazar Branch. The cheques were dated 28-5-2008, 10-6-2008 and 28-5-2008 for Taka 5,20,000, Taka 10,000 and taka 10,000 respectively. The cheques were lastly deposited on 3-11-2008 with Dutch Bangla Bank Ltd., Jublee Road Branch the Bank of the payee, for collection, but all the cheques were returned due to insufficiency of fund.
Thereafter, a legal notice was issued by the payee upon the accused on 30-11-2008 claiming the amount due under the aforesaid three dishonoured cheques. The said notice was received by the accused on 3-12-2008, but he did not pay the amount due under those cheques. Thereafter, upon expiry of the period of thirty days from 3-12-2008, the complainant filed the petition of complaint on 4-1-2-009 before the Additional Chief Metropolitan Magistrate, Chittagong. The complainant being examined under Section 200 of the Code of Civil Procedure (the Code), cognizance was taken against the accused under Section 138 of the Act, 1881. The accused petitioner appeared before the concerned Magistrate with the prayer for bail and he was enlarged on bail. The case being ready for trial, the records were transmitted to the Metropolitan Sessions Judge, Chittagong.
The case was registered as Sessions Case No.1217 of 2009. The learned Metropolitan Sessions Judge framed charge against the accused in his absence on 9-8-2009 under Section 138 of the Act, 1881. However, the accused was enlarged on bail by the learned Metropolitan Sessions Judge on 9-9-2009. Then he filed an application before the High Court Division under Section 561A of the Code for quashing the Sessions case and obtained the Rule.
3. A Division Bench of the High Court Division hearing the parties by the impugned judgment and order discharged the Rule, hence this petition for leave to appeal.
4. Heard Mr Md Aftab Hossain, learned Advocate-on-Record for the accused petitioner, Mr B. Hossain learned Advocate-on-record for respondent No.1, the state and Mr ASM Abdul Mobin, learned Advocate for the complainant respondent No.2 and perused the petition of complaint.
5. From the impugned judgment, it appears that before the High Court Division two contentions were raised on behalf of the accused-petitioner: (i) 3(three) cheques issued by the complainant dishonoured due to insufficiency of fund being account payee cheques those were not negotiable, therefore, no complaint could be filed under Section 138 of the Act, 1881, the Sessions case in question arising out of the petition of complaint under the said section of the Act was nothing but an abuse of the process of the Court and (ii) the cheques alleged to have been dishonoured were taken from the accused forcibly by kidnapping him and a criminal case is still pending against the complainant on such allegation, so the Sessions case in question could not be proceeded with till disposal of the case filed by the accused against the complainant.
6. From the impugned judgment, it appears that the High Court Division repelled the first contention on the finding that although the cheques in question ceased to be negotiable being account payee cheques, they did not cease to be negotiable instruments and therefore, the mischief of Section 138 of the Act, 1881, was clearly attracted and the complainant rightly filed the petition of complaint alleging the commission of offence under the said section of the Act. So far as the second contention was concerned, the High Court Division observed that there was no legal scope of connecting the case filed by the accused with the instant case and that the said case had no relevance with the impugned proceedings. The High Court Division further held that the petition of complaint giving rise to the Sessions case was filed after observing all the legal formalities.
7. The first contention raised by the accused before the High Court Division squarely came up for consideration before this Court in the ease of Arif-uz-Zaman (Md) vs State, 17 BLC (AD) 176 = 21 BLT (AD) 234 and this Division held that:
The legislative mandate as used in clause (a) of sub-section (2) of Section 123 A of the Act, 1881 that when a cheque is crossed “account payee” shall cease to be negotiable means it cannot be negotiated or encashed with any other person except the person in whose favour the same was issued.
To make it clearer, a crossed cheque “account payee” must be encashed through the account of the holder in whose favour it was issued. So, by no means, a crossed cheque “account payee” loses its character as a negotiable one within the meaning of Section 138 of the Act, 1881. Moreover Section 13 of the Act, 1881 which has define “Negotiable instrument” has not made any distinction between crossed cheque “account payee” or cheque of other kind such as bearer cheque 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. In other words, we do not see any nexus of Section 123A with the proceedings to be initiated under Section 138 of the Act.”
8. We do not see any reason to differ with the view already taken in the above case on the question of character of the dishonoured cross cheques “account payee” as negotiable instruments. In the context, we also endorse the reasonings of the High Court Division on the question as stated hereinbefore. So far as the pendency of the criminal case filed by the accused against the complainant about the cheques in question is concerned, we are of the view that the operation of Section 138 of Act, cannot be obstructed or, in any way, circumvented by the mere fact of filing of a criminal case by the drawer of the dishonoured cheque whatever may be the allegations, because such a device shall totally make the section itself nugatory. However, if a holder or the payee gets hold of a dishonoured cheque by any illegal means as alleged in the instant case, the drawer of the cheque shall have the liberty to take such defence during the trial.
9. In view of the above, we find no merits in the leave petition.
Accordingly, the same is dismissed.
