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Fixing notice period under Negotiable Instrument Act 1881

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30th-Sep-2017       
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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.

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