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When quashment of proceeding not permissible

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10th-Mar-2018       
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High Court Division :
(Criminal Miscellaneous Jurisdiction)
Borhanuddin J
Md Ashraful Kamal J
Roma Morshed.........Accused-Petitioner
vs
State and another............Opposite Parties
Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXVI of 1881)
Section 138(lA)
Service of notice is a question of fact which can be determined by the trial court upon taking evidence. Quashment of proceedings at the stage when trial already began and prosecution witnesses are being examined, is not permissible.
On perusal of the order sheet of the court below as appended with the application under Section 561A of the Code it appears that after concluding testimony of the prosecution witness, Court below examined the accused-petitioner under section 342. Thereafter, both the parties completed their argument and the case was fixed for delivering judgment.
At that stage the accused-petitioner preferred criminal miscellaneous case under Section 561A of the Code and obtained rule alongwith an order of stay. . ..... (8 & 9)
Golam Sarwar Hiru vs State, 13 MLR (AD) 103 = 14 BLC (AD) 26 and Md Mosharraf Hossain vs Golam Mohamad, 19 BLT (AD) 239 ref.
Sagorica, Advocate - For the Accused-Petitioner.
Md Hamidur Rahman, Advocate-For the Opposite Party No.2.
Judgment
Borhanuddin J : This Rule has been issued calling upon the opposite parties to show cause .as to why proceedings of Metropolitan Sessions Case No. 2279 of 2012 arising out of CR Case No. 467 of 2011 under Section 138 of the Negotiable Instruments Act, 1881, now pending in the 1st court of Joint Metropolitan Sessions Judge, Dhaka, should not be quashed and/or such other or further order or orders passed as to this court may seem fit and proper.
2. Facts relevant for disposal of the rule are that the opposite party No. 2 herein as complainant filed CR Case No. 467 of 2011 (Kotwali) in the Court of learned Chief Metropolitan Magistrate, Dhaka, stating interalia that 'in course of business the accused owed Taka 10 lacs to the complainant and to repay the amount issued a cheque dated 31-3-2011 amounting Taka 5 (five) lacs from the account of Mercantile Bank Limited maintained in the name of her business organization 'Princes Beauty Parlour; the complainant deposited the 'cheque in her account of Bank Al Falah Limited, Dhanmondi Branch, on 7-6-2011 for 'encashment but the cheque was returned for 'insufficient fund'; the complainant served legal notice 'upon the accused under Section 138 of the Negotiable Instruments Act but the 'accused neither received the notice nor take any step for payment of the amount; Hence, the case.
3.Record of the case transmitted in the 1st Court of learned Joint Metropolitan Sessions Judge, Dhaka, for trial and' registered as Metropolitan Sessions Case No': 2279 of 2011. The accused voluntarily surrendered and obtained bail. Court below framed charge against the accused on 25-6-2012 under Section 138 of the Negotiable Instruments Act, 1881. The complainant was examined as PW 1. After concluding testimony of the prosecution witness, Court below examined the accused under Section 342 of the Code of. Criminal Procedure. Both the parties completed their argument and the Court below fixed 29-11-2015 for delivering judgment.
4. At that stage, the accused as petitioner preferred' this criminal miscellaneous case by filing an application under Section 56lA of the Code of Criminal' Procedure and obtained the present rule alongwith an order of stay.
5. Ms Sagorica, learned advocate appearing for the petitioner submits that the legal notice was not served upon accused petitioner in compliance with the provisions of Section 138(IA) of the Negotiable Instruments Act inasmuch as notice was sent at the address where accused petitioner does not reside.
6. On the other hand, Mr Md Hamidur Rahman learned advocate for the opposite party No.2 submits that whether legal notice was served or not is a disputed question of fact and does not come within the ambit of Section 56lA of the Code of Criminal Procedure. He also submits that when examination of the witnesses has been completed and a date has been fixed for delivering judgment, at that stage plea of quashment under Section 56lA of the Code of Criminal Procedure is not tenable. In support of his submissions, learned advocate referred the case of Golam Sarwar Hiru vs State, reported in 13 MLR (AD) 103 = 14 BLC (AD) 26 and the case of Md Mosharraf Hossain vs Golam Mohamad, reported in 19 BLT (AD) 239.
7. Heard learned Advocate for the petitioner and learned advocate for the opposite party No.2. Perused the application under Section 56lA of the Code of Criminal Procedure and annexures appended thereof alongwith counter affidavit filed by the opposite party No.2.
8. On perusal of the order sheet of the court below as appended with the application under Section 56lA of the Code of Criminal Procedure it appears that after concluding testimony of the prosecution witness, Court below examined the accused-petitioner under
Section 342 of the Code of Criminal Procedure. Thereafter, both the parties completed their argument and the case was fixed for delivering judgment. At that stage the accused-petitioner preferred this criminal miscellaneous case under section 56lA of the Code of Criminal Procedure and obtained present rule alongwith an order of stay.
9. The only contention of the learned advocate for petitioner is that the complainant opposite party did not comply provisions of Section 138(IA) of the Negotiable Instruments Act inasmuch as the notice was not served upon the accused and the address of the notice is not correct. It is settled by our apex court that service of notice is a question of fact which can be determined by the trial court upon taking evidence. In the case of Go/am Snrwar Hint vs. the State, reported in 13 MLR (AD) 103 = 14 BLC (AD) 26, it has been held by our apex Court that quashment of proceedings at the stage when trial already began and prosecution witnesses are being examined, is not permissible.
10. In the present case, after concluding testimony of the prosecution witness Court below examined the accused petitioner under Section 342 of the Code of Criminal Procedure, both the parties placed their arguments and a date was fixed for delivering judgment.
At this stage, application under Section 561A of the Code of Criminal Procedure for quashment of proceedings cannot be entertained.
11. Considering facts and circumstances of the case and for the reasons state above, we are inclined to discharge the rule with cost.
12. Accordingly, the Rule is discharged with a cost of Taka 5,000 (five) thousand.
13. Order of stay granted at the time of issuance of the rule and extended from time to time is hereby vacated.
Communicate a copy of this judgment to the court concern at once.

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