(From previous issue) :
21. The learned Advocate for the petitioner submits that after the amendment by Act No. iii of 2006 according to Section l41(c) of the Act no court interior to that of session shall try any offence punishable under Section 138. But the instant trial is found to have been held by the Joint Metropolitan Session Judge, 7th Court Dhaka and according to Section 17 A of the Code of Criminal Procedure all Joint Sessions Judges are subordinate to the sessions Judge as such if the trial is allowed to be continued by the Joint Metropolitan Session Judge, will be deemed to have been acted upon beyond its jurisdiction for which reason the same is liable to be quashed in order to meet the deemed of justice.
22. The learned Advocate for the petitioner next submits that the instant proceeding is hit by Sections 177 and 179 of the Code of Criminal Procedure. It appears from paragraph 4 of the complaint petition that the impugned cheque was dishonored by the Islami Bank Bangladesh Ltd. Chapainawabgonj Branch and, as such, according to Section 179 of the Code of Criminal Procedure the trial is to be held by the Session Judge, Chapainawabgonj having local jurisdiction under Section 177 of the Code of Criminal procedure and, as such, the instant Trial being held by the Joint Metropolitan Session Judge, 7th Court, Dhaka is liable to be protected by this Hon'ble court for the ends of justice.
13. The learned Advocate for the petitioner lastly submits that since the instant trial is going to be held by not a competent court it is liable to be interfered with by this Hon'ble Court to secure the ends of justice.
24. The learned Advocate for the petitioner in support of his contention has referred the case of Abdul Quader Chowdhury vs State reported in 28 DLR (AD) 38, the case of Eusof Babu vs State reported in 68 DLR AD 298. The aforesaid citation as referred by the learned Advocate appearing for the petitioner have no manner of application in the facts and circumstances of the present case.
25. The rule is being contested by opposite party No.2 by filing counter affidavit against the application filed under Section 561A of the Code of Criminal Procedure.
26. Mr Nazmul Karim, the learned Advocate appearing for the opposite party No. 2 contested the rule by filing a Counter Affidavit and submits that this opposite party duly served the required notice and which the accused petitioner refused to receive the notice was returned showing the remark ÒcÖvcK †gvevBj gva¨‡g wPwV MÖnY Kwi‡Z A¯^xKvi Kivq g‡Z †dirÓ on 8-9-2011 by the concerned Postal Peon and this opposite party already exhibited the same in the Trial Court on 21-7-2016. It is thus evident that having had due knowledge as to the dishonor of the Cheque in question, the accused-petitioner refused to receive the notice with a view to evade payment of the cheque amount by adopting unfair means.
27. He further submits that whether the notice as required to be served under Section 138 of the Negotiable Instruments Act, 1881 is essentially a question of fact to be proved by adducing evidence at the time of trial, inasmuch as there is a specific assertion in the complaint itself that such notice was served by this opposite party and the accused-petitioner refused to receive the same. Hence, this fact cannot be decided by this Hon'ble Court exercising jurisdiction under Section 561A of the Code of Criminal Procedure.
28. He next submits that it is now well settled in law that such deliberate refusal as in the instant case would amount to constructive service of the notice upon the accused-petitioner. Besides, by virtue of sub Section 1A (b) as amended by the Negotiable Instrument (amendment) Act 2006, sending the notice by registered post with Acknowledgement Due (A/D) to a person at his usual or last known place of abode or business in Bangladesh is only required and by dint of Section 27 of the General Clauses Act, 1897 the service shall be deemed effective if the notice issued by properly addressing, prepaying and posting by registered post. Hence, even if the notice is not served physically, sending by registered post shall be deemed as effective service.
29. He also submits that the other ground taken in the supplementary affidavit regarding the requirement of filing the complaint by the Power of Attorney Holder, it is submitted that this opposite party is a Private Limited Company and it has to be represented by a natural person and such person if so authorized in writing in the letter head of the company would suffice.
In the instant complaint, it has been positively stated in the cause title that the company would be represented by its named Officer and the respective letter of Authorization was duly filed therewith and in the capacity of the authorized person, the complaint was filed. Thus the contention got no merit at all and it should be rejected in limini.
30. He lastly submits that the trial of the respective sessions case commenced. On 29-6-2011 charged was framed and on 21-7-2016, the authorized representative of this opposite party was examined and all documents including the notice as well as the returned notice with the endorsement were exhibited. Subsequently, at the instance of the accused-petitioner, the cross examination was deferred on 17-8-2016. Now the next date of the case was fixed on 23-2-2017 for taking steps under Section 342 of the Code of Criminal Procedure. Hence at this stage when trial already begun and prosecution witness is examined, quashment of the proceedings is not permissible.
31. In support of his contention the learned Advocate for the opposite party No. 2 has referred the case of Sheikh Mashuk Rahman vs State reported in 62 DLR 2010 28, the case of Md Kamal Uddin @ Md Kamal Ahmed vs Md Mezbah Uddin reported in Xl ADC 2014, the case of Abdul Alim vs Biswajit Dey reported in 59 DLR (2007) 236, the case of Abdur Rob Malla vs Shahabuddin Ahmed reported in 12 BLC (AD) 188, AIR PC 102, 52 CWN 659, 39 CWN 934, 6 DLR 267, 17 DLR (WP) 26, 22 DLR 664 observed it appears, therefore, that except for the solitary decision reported in AIR 1915 Cal 313.
32. He lastly refers the case of Sarwar Hossain Moni vs State reported in 66 DLR (AD) 283.
33. We have heard the learned Advocate of both sides perused the impugned proceedings of the Courts below also considered the submissions as advanced by the learned Advocate in support of his contention and also considered the citation as referred by the learned Advocate for opposite party No. 2.
34. In the case of Abdur Rob Molla vs Shahabuddin Ahmed reported in 12 BLC (AD) 118, it is held that:-
"In the afore state of the matter the High Court Division was of the view that there was due and proper service of summons through the process server on the respondents. We are of the opinion that the mode in which personal service of summons was effected on the respondent No.2 of the Miscellaneous Appeal No.7 of 1989 i.e. appellant herein, in the eye of law was not a due and proper service of summons or the petitioner in the Miscellaneous Case who was respondent No.2 in the Miscellaneous Appeal since his mother was not his authorized agent to receive the summons of the Miscellaneous Appeal on his behalf."
35. The learned Additional District Judge, was in error in holding since acknowledge receipt was not received by the Court consequently summons sent by registered post cannot be considered due service of summons by registered post as because proviso to sub rule 2 of rule 19B of the Code of Civil Procedure provides that when the summons was sent by registered post with acknowledgment receipt due and that after 30 days even if acknowledgment receipt is lost or mislaid or for any other reason; was not received by the Court it would be considered that the summons was duly served by the registered post.
36. The question when summons or a letter is sent to a particular address which is the correct address of the addressee by registered post and the postal peon returned the envelope with the endorsement "refused" shall be considered that there has been due service of the summons or notice or of tendering of the letter came up for consideration in the case of Harihar Banerji vs Ramshashi Roy reported in AIR 1981 PC 102 (the same case has also been reported in 45 IA 222) and therein it has been observed:
"If a letter properly directed, containing notice to quit, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself".
37. In the case of in the matter of part cargo ex steamship "Belgia" reported in AIR '1918 PC 338 it has been held:
"As a general rule the Court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who disputed that inference to show the contrary'. So, from the ratio of the aforementioned cases it is seen that one who disputes the delivery of the letter, herein summons, sent by registered post the onus is on him to prove that the letter, as in the instant case the summons sent by registered post, was not tendered to him by the postal peon."
38. To invalidate such a service the defendant must expressly prove, to the satisfaction of the court, that what would happen in the ordinary course did not happen and that he did not get an opportunity to accept it; and for the purpose it is open to him to prove that he never refused it and that it never was tendered to him. A mere denial that it was never delivered to him is not sufficient. The similar question came up for consideration before the Dhaka High Court in the case of Monomohan Roy Chowdhury vs Ajit Kamal Dutta reported in 6 DLR 267 and therein the learned Judge upon noticing the ratio of the cases reported in AIR 1918 PC 102, 39 CWN 934 and 52 CWN 659 observed:
"In a case where a registered notice has come back with the postal endorsement "refused", it is for the defendant addressee who denies receipt of the registered notice to prove that the notice was not properly addressed to him or it was never tender to him. The plaintiff need not prove the service of the registered notice duly addressed,"
39. Similar question also came up for consideration before the High Court Division in the case of Dr Jamshed Bakht vs Md Kamaluddin reported in 1981 HID 97 and the learned Judge of the said Division after noticing the ratio in number of cases including AIR 1981 PC 102, 52 CWN 659, 39 CWN 934, 6 DLR 267,17 DLR (WP) 26, 22 DLR 664 observed:
"It appears, therefore, that except for the solitary decision reported in AIR 1915 Cal 313 the preponderant view, is that when a notice under Section 106 of the Transfer of Property Act is sent by registered post and is returned to the sender with the endorsement "refused" on it, the service of notice is deemed to be a good service and it is not necessary to examine the postal peon to prove the endorsement view that mere denial by the defendant that he did not receive the notice or that it was not tendered to him is not sufficient. He is to adduce evidence that he was not tendered any notice and that he did not refuse any notice."
40. From the ratio of the aforementioned cases it is seen that when the summons is sent by registered post from the court and if the postal peon returned the envelope in which the summons was sent to the defendant/respondent with the endorsement "refused" and if it is not established by the addressee, that the address to which the summons was sent was not his address or that postal peon did not tender the registered envelope to him and, as such, he had no occasion to refuse the acceptance thereof, then it shall be considered that the summons has been duly served on the addressee.
In the instant case, the appellant who was respondent in the Miscellaneous Appeal No.7 of 1989 did not lead any evidence to show that the address at which summons was sent by registered post was not his address at the relevant time and that postal peon did not tender the registered envelope to him and, as such, there was occasion for him to refuse acceptance thereof. In the afore state of the matter, we are of the view the High Court Division was quite correct in holding that summons of the appeal i.e. Miscellaneous Appeal No.7 of 1989, was duly and properly served all the respondent No. 2 in the Miscellaneous Appeal No.7 of 1989, who is the appellant in the instant appeal.
41. The implication of illustration (f) of Section 114 of the Evidence Act and the provision of Section 27 of General Clauses Act are that in case of posting of letter, sending notice or summons by registered post to the correct address or to the address of the addressee known to the sender i.e. while no other address of the addressee was made known to the sender or, in other words, change of address of the addressee was not intimated to the sender, the presumption is that such letter, notice or summons sent by registered post to the person addressed to have been delivered and if the registered envelope is returned with the endorsement of the postal peon "refused" by the address, then too it shall be considered that the letter, notice and the summons has duly and properly been received or served unless the addressee establishes that letter, notice or summons was not sent to his correct address and, as such, he had no occasion to refuse the acceptance of the registered letter or the envelop. The person who is disputing or trying to deny the statutory presumption of the matter as provided by the provision of Section 27 of the General Clauses Act and that the presumption of correctness or genuineness of the matter as implied by illustration (f) of Section 114 of the Evidence Act is to rebut the said matter or genuineness/ correctness of presumption of fact upon producing evidence. So, letter sent, notice or summons sent by registered post and if returned with the endorsement "refused" shall be accepted as good and due service of notice or summons and the delivery of the letter to the person addressed unless the addressee rebuts the presumption of good service or delivery of letter by adducing evidence.
42. In the case of Sheikh Mashuk Rahman vs State reported in 62 DLR 28, it is held that:
"The submission made by the learned counsel for the accused-petitioner as to whether the notice served or not, as required to be served under Section 138 of NI Act, is essentially a question of fact, to be proved by adducing evidence at the time of trial, inasmuch as there is specific assertion in the complaint petition that such a notice was, in fact, served. Hence, this fact cannot be decided by this court exercising jurisdiction under Section 561A of the Code of Criminal Procedure and this is to be decided by the trial court upon receiving evidence. The principle of law in this respect has been set at rest by the Appellate Division in the case cited above."
(To be continued)
43. In the case of Md Kamal Uddin @ Md Kamal Ahmed vs Md Mezbah Uddin reported in XI ADC 2014, it is held that:-
"A criminal proceeding shall not be stifled before trial, when there was a prima facie case for going to the trial........
"With regard to the submission that the Assistant Sessions Judge does not have jurisdiction to hear the matter, we may refer to the provisions of the Code of Criminal Procedure (the Code) which provides in Section 6 that, apart from the Supreme Court and Courts constituted under any other law, there shall be two classes of criminal courts, namely courts of Sessions and Courts of Magistrate. An Assistant Sessions Judge or Joint Sessions Judge as mentioned in Section 9(3A) of the Code is also a Judge of the Court of Sessions. Section 141(c) provides that no court inferior to that of Court of Sessions shall try any offence punishable under Section 138.
The Section does not say that any case under Section 138 may not be tried other than by the Sessions Judge. The Court of Assistant Sessions Judge is also a Court of Sessions and, as such, there is no illegality in the trial continuing before the Court of Assistant Sessions Judge. Moreover, we may refer to a decision of this Division in the case of MK Bazlur Rahman vs Md Johurul Haque reported in VI ADC (2009), 809, where this Division affirmed the judgment of the High Court Division.
44. In the case of Abdul Alim vs Biswajit Dey reported in 59 DLR 236 where it is held that:-
"The submissions made is not sustainable either in law or on the facts of the given case. The offence under Section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and complainant can choose anyone of the courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a bank at Chittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed."
45. In the case of Sarwar Hossain Moni (Md) vs State reported in 66 DLR (AD) 283 where our apex court held that:-
''It is true that in the judgment sought to be reviewed, there has been no detailed discussions as to the point raised before the High Court Division that the respective petition of complaint having been filed before expiry of the statutory period as stipulated in clause (c) of the proviso to Section 138(1) of the Act, 1881, was barred by law, this division having affirmed the judgment and order passed by the High Court Division which took the view that though the respective petition of complaint was filed before expiry of thirty days from the date of receipt of the notice issued under clause (b) of the proviso to Section 138, was maintainable in law, in fact, gave the answer. Be that as it may, since in these review petitions, specific question has been raised to the above effect, we need to answer the same with reference 10 clause (c) of the proviso to Section 138 of the Act, 1881 read with Section 141 thereof."
46. On perusal of the application under Section 561A of the Code of Criminal Procedure and the counter affidavit filed by the opposite party No.2 and the citations as referred by the learned Advocate for the opposite party No.2. We find no merit in the submissions of the learned Advocate appearing for the petitioner on the contrary we find merit in the submissions of the learned Advocate appearing for the opposite party No. 2 and the citations as referred by the learned Advocate for the opposite party No. 2 are fully applicable in the facts and circumstances of the present case. We find no merit in these rules and, as such, both the rules are devoid of any substance.
47. In the result, both the rules are hereby discharged without any order as to cost. The order of stay as granted at the time of issuance of the rule is hereby re-called and vacated. The learned Joint Metropolitan Sessions Judge, 7th Court, Dhaka is hereby directed to dispose of the CR Case No. 321 of 2011 now pending in the 7th Court of Joint Metropolitan Sessions Judge, Dhaka expeditiously as far as practicable preferably within six months from the date of receipt of a copy of this judgment positively.
The office is hereby directed to transmit a copy of this judgment to the concern Court forthwith for information and necessary action.