Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Sunday, December 17, 2017 12:42:01 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter
BREAKING NEWS:

Fixing notice period under Negotiable Instrument Act 1881

By
30th-Sep-2017       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division :
(Criminal Miscellaneous Jurisdiction)
Md Habibul Gani J
Md Akram Hossain
Chowdhury J
Maloy     ............
..........Accused-Petitioner
vs
Md Sekander Chockder @ Md Shahadat Hossain and another ................
......................... Opposite-Parties
Judgment
June 7th, 2017
Negotiable Instruments Act (XXVI of 1881)
Section 138
The complainant clearly asserted that he served the legal notice upon the accused petitioner under section 138 of the Act asking him to pay the cheques amount within 7 days.
But the section 138(1)(b) of the Act, does not mandate the complainant to issue such type of notice affording 7 days notice. Legal notice was though served after 16 days of the notice the petition of complaint was filed beyond the stipulation of section 14l(b) of the Act. The proceeding was initiated and proceeded in violation of section 138(1)(b) as well as 141(b) of the Act. . ..... (9)
Kazi Bashir Ahmed, Advocate-For the Accused Petitioner.
None appears-For the Complainant Opposite Party No.1.
Monju Naznin AAG-For the State Opposite-Party No.2.
Judgment
Md Akram Hossain Chowdhury J : At the instance of the accused petitioner, namely Maloy, 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. 3523 of 2008 arising out of CR Case No. 2213 of 2007 under section 138 of the Negotiable Instrument Act, 1881, now pending in the Court of Joint Metropolitan Sessions Judge, 2nd Court, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seems fit and proper.
2. At the time of issuance of the Rule by an ad-interim order of this court the impugned proceeding has been stayed.
3. The facts leading to this Rule, in brief, is that one Md Sekander Chockder @ Md Shahadat Hossain being complainant on 27-6-2006 filed a petition of complaint before the learned Chief Metropolitan Magistrate, Dhaka implicating therein the present petitioner as accused for committing offence under section 138 of the Negotiable Instrument Act, 1881 alleging inter-alia that the accused petitioner to discharge the liability of Taka 6,50,000 issued 3 (three) cheques in favour of the complainant which was though placed before the Bank on 3-6-2007 but those cheques were returned unpaid due to insufficient of fund. As such, the complainant through his engaged lawyer issued legal notice upon the accused petitioner on 11-6-2007 asking to make payment of the cheques amount within 7 (seven) days. But having no reply the complainant filed the instant case before the learned Chief Metropolitan Magistrate, Dhaka on 27-6-2007 which was registered as CR Case No. 2213 of 2007 (South).
4. After filing of the said petition of complaint the learned Metropolitan Magistrate, assigned by learned Chief Metropolitan Magistrate, vide his order dated 28-6-2007 upon taking the statement of the complainant under section 200 of the Code of Criminal Procedure issued the process against the accused petitioner having finding a prima-facie case under section 138 of the Negotiable Instrument Act, 1881. And then the police arresting the petitioner produced him before the learned Metropolitan Magistrate, Dhaka on 23-3-2008 and ultimately he obtained his bail there from.
5. Then in due course the case record was transferred to the Court of Joint Metropolitan Sessions Judge, 2nd Court, Dhaka for its trial and disposal where the case was registered again as Sessions Case No.3523 of 2008. In the said proceeding the accused petitioner by filing an application under section 265C of the Code of Criminal Procedure prayed for discharging him from the case, contending therein that the legal notice was not served in accordance with law as provided by section 138, sub-section l(b) of the Negotiable Instrument Act, 1881 and further that the cheques in question, were not issued in favour of the present complainant but in fact the cheques were issued in favour of one Md Shahadat Hossain who already got the payment of the cheques amount. However, the present complainant inserting his name as alias with the name of said Md Shahadat Hossain filed the instant case. But in the meantime, the said Md Shahadat Hossain, the original cheques holder, being informed, by swearing an affidavit declared that he has already got the cheques amount and the present complainant being a fake person by any means manipulating those cheques filed the instant petition of complaint, which cannot be proceeded.
6. The learned Joint Metropolitan Sessions Judge, however, by its order dated 30-10-2008 rejecting the said application of the accused petitioner framed charge against him under section 138 of the Negotiable Instrument Act, 1881. The accused petitioner then on 16-10-2008 filed another application for calling a report from the concerned police station about to know the real identity/existence of the complainant namely Md Sekandar Chockder @ Md Shahadat Hossain. However, that application was also rejected by the trial court below.
In this back drop the accused petitioner moved before this Court under section 561A of the Code of Criminal Procedure and obtained the present Rule along with an ad-interim order staying the impugned proceeding.
7. Mr Kazi Bashir Ahmed, the learned Advocate appearing for the accused petitioner, at the very out set, submits that in the present case no cause of action was at all arose; as because the complainant admittedly served a legal notice mentioning therein to pay the cheques amount within 7 (seven) days. But the section 138 of the Negotiable Instrument Act, 1881 does not provide such time of 7 days. He further submits that though the said legal notice admittedly served on 11-6-2007 but the instant case was filed on 27-6-2007 i.e. within 16 days of serving the legal notice which is also beyond the stipulation of section 141(b) of the said Act and thus there happened a clear violation of mandatory provision of law.
He also submits that the accused petitioner in his application filed under section 265C of the Code of Criminal Procedure has been though agitated these grievances clearly but the learned Judge of the Trial Court did not take those in his consideration. Learned Advocate also contended that the original cheques holder in due course, namely Md Shahadat Hossain by swearing an affidavit declared that he had already got the cheques amount.
But later on upon manipulating his name by inserting therein as alias with the name of said Md Shahadat Hossain the complainant namely Md Sekander Chockder who was in no way the holder of the cheque in due course filed the instant case. However, the learned Judge of the Trial Court without considering the said facts and circumstance as well as the legal submissions of the accused petitioner framed charge against him which tantamounts to be a clear abuse of process of the Court and as such, the impugned proceeding is liable to be quashed.
8. The complainant Md Sekander Chockder @ Md Shahadat Hossasin was though made as opposite party in this application filed under section 561A of the Code of Criminal Procedure and the rule was issued upon him as well in the year of 2008 but no one turned up to represent the said complainant or to oppose the present Rule.
9. We have considered the submissions as advanced by the learned Advocate for the petitioner and gone through the petition of complaint which is the main basis of the present proceeding. It reveals that in paragraph No.9 of the petition of complaint the complainant clearly asserted that he served the legal notice upon the accused petitioner under section 138 of the Negotiable Instrument Act on 11-6-2007 asking him to pay the cheques amount within 7 days. But the section 138(1)(b) of the Negotiable Instrument Act, 1881 does not mandate the complainant to issue such type of notice affording 7 days notice time. It further reveals from the record that the legal notice was though served on 11-6-2007 but after 16 days of the said notice the petition of complaint was filed on 27-6-2007. That also appears beyond the stipulation of section 141(b) of the Negotiable Instrument Act, 1881. It thus, apparently appears from the record that the impugned proceeding was initiated and proceeded in violation of section 138(1)(b) as well as 141(b) of the Negotiable Instrument Act, 1881.
10. It also transpires from the application filed under section 265C of the Code of Criminal Procedure wherein the accused petitioner clearly agitated about those legal violation as occurred in the instant case and also contended that the holder in due course of the cheques in question namely Md Sahadat Hossain by swearing an affidavit has been declared that he had already got the cheques amount. But the present complainant is being a fake person upon creating a manipulation filed the instant case against the accused petitioner.
The learned Joint Metropolitan Sessions Judge, 2nd Court, Dhaka without taking those clear violation of law in the proceeding and also the manipulation created by the complainant, to his consideration in taking decision but proceeded with the case upon misconception of law which shows the learned Judge did not apply his judicial mind in taking his decision in the case. Such conduct of the learned Joint Metropolitan Sessions Judge, 2nd Court, Dhaka is not desirable and also not acceptable in the eye of prosecut on case, law. Thus, we have no hesitation to hold the view that the impugned proceeding has been initiated and proceeded in violation of law and if we allow to proceed the same further, it will be the clear abuse of process of the Court. As such, the impugned proceeding is liable to be quashed. Hence, we find merit in this Rule.
11. In the result, the rule is made absolute.
12. The proceeding of Sessions Case No.3523 of 2008 arising out of CR Case No. 2213 of 2007 under section 138 of the Negotiable Instrument Act, 1881, now pending before the learned Joint Sessions Judge, 2nd Court, Dhaka is hereby quashed.
Communicate the judgment and order to the Court concerned, at once.

Tariff
Add Rate

News Archive

Inside The New Nation

International »

Trump promises `giant tax cut` as `Christmas gift` to Americans


PTI, Washington :US President Donald Trump today said the Congress has reached an agreement on tax legislation that will deliver more jobs, higher wages, and "massive tax relief" for American families and domestic companies.Trump recognised the tax reform as a campaign promise during his run-up to the 2016 presidential election, ...

Editorial »

Muslim leaders must continue to act together not to be ignored


WE welcome the OIC's (Organisation of Islamic Cooperation) decision declaring East Jerusalem as capital of Palestine at a summit at Istanbul on Wednesday as the most appropriate and timely action to denounce US President Donald Trump's unilateral declaration that Jerusalem is the capital of the state of Israel. Their call ...

Football »

Players of A Level team, the champions of the Inter-Class Victory Day Football Competition of Manarat Dhaka International School & College with the teachers of Manarat Dhaka International School & College pose for a photo session at Manarat College field on Thursday.


Entertainment »

Meryl Streep is the most Golden Globe-nominated actor


Meryl Streep has begun her Hollywood award season dominance by bagging her 31st Golden Globe nomination, which is a record in the 75-year history of the award show. Streep won the nomination in the best actress, drama category for her portrayal of the Washington Post publisher Kay Graham in Steven ...

Entertainment »

Porimoni, Zayed Khan`s Antorjwala releases today


Entertainment Report :Today across the country in 175 cinema halls Malek Afsari directed and Porimoni-Zayed Khan acted much awaited movie Antorjwala is set to be released. On the occasion its releasing Pori and Zayed will enjoy the movie along with director Malek Afsari in Dhaka’s Modhumita, Shyamoli and Sony halls.While ...

City »

Speaker Dr Shirin Sharmin Chowdhury handing over ICT Award to Director General of Health Department Prof Dr Abul Kalam Azad for his contribution in using digital technology in health services at Bangabandhu International Conference Center in the city on Tuesday.


Weekend Plus »

Quick recipes for the burger-lover in you


Weekend Plus Desk :If you are a burger lover or want to fix a burger quickly for uninvited guests, here are a few recipes which can save the day. Recipes by Chef Gaurav Chadha, in-house chef, Dr Oetker India Pvt Ltd:* Chicken and egg burger: Heat oil in a kadhai ...

Editorial »

Attack on New York City is disgusting


AN attempted terrorist attack in a New York City bus terminal by a US national of Bangladesh origin has caused widespread surprise and condemnation here and also in the Bangladesh community in the USA. The person Akayed Ullah at his 27 is a taxi driver in New York City and ...

International »

US embassy unlikely to move to Jerusalem before 2020: Tillerson


Xinhua, Washington :U.S. Secretary of State Rex Tillerson said Tuesday the U.S. embassy in Israel was unlikely to be moved to Jerusalem before 2020, national media outlets reported."It's not going to be anything that happens right away," U.S. news daily the New York Times quoted Tillerson's speech at the State ...

Football »

Crystal Palace's James McArthur (centre) celebrates scoring his side's second goal of the game with team-mates during the English Premier League match between Crystal Palace versus Watford at Selhurst Park, London on Tuesday.


Sports »

A scene from the SA Group Premier Division Chess League at the Auditorium of the National Sports Council Tower on Wednesday.


Entertainment »

Akshay shares the new poster of PadMan while giving the hint about trailer


Akshay Kumar is gearing up for his next release PadMan which is all set to release on Republic Day, 26th January 2018. Recently Akshay is on spree of releasing new posters of the films. A day before yesterday Akshay shared a poster of the film in which he can be ...

City »

DU VC Prof Aktaruzzaman speaking at a seminar on' Mass Media Vs Social Media at TSC organised by the Dhaka University Journalists Association on Wednesday .


Editorial »

Colleges without enrolment should cease to exist


OVER 1,500 colleges are in fear of closure as they have failed to fulfil the condition of the Education Ministry in terms of students' admission at Higher Secondary level, The concern is genuine because opening of new colleges and also their closure is not small thing, as it impacts lives ...

Cricket »

A good number of spectators arrived at the Sher-e-Bangla National Cricket Stadium to watch the final match of the AKS Bangladesh Premier League (BPL) Twenty20 Cricket between Rangpur Riders and Dhaka Dynamites at the Sher-e-Bangla National Cricket Stadium in the city's Mirpur on Tuesday.


 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news