Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Wednesday, September 26, 2018 07:55:14 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

When quashment of proceeding not permissible

By
10th-Mar-2018       
Comments
Share your thought
Post a comment »
Read all () »

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.

Tariff
Add Rate

News Archive

Inside The New Nation

Sports »

Law leaving West Indies to coach Middlesex


Stuart Law is leaving his role as West Indies head coach to take over at Middlesex from next season, the English county announced on Monday.The former Australia batsman has signed a four-year deal and will begin duties in January following West Indies' tours of India and Bangladesh."It is a great ...

Editorial »

The audacity of Myanmar is only can be answered by an united int`l community


MYANMAR'S powerful army chief says the United Nations has no right to interfere in his country's sovereignty, a week after UN investigators called for him and other top generals to be prosecuted for "genocide" against the Rohingya. Min Aung Hlaing's comments to an army newspaper were his first public reaction ...

City »

BNP Standing Committee Member Barrister Moudud Ahmed, among others, at a youth rally organised by Jatiyatabadi Projanmo '71 at the Jatiya Press Club on Tuesday demanding release of BNP Chief Begum Khaleda Zia and election under impartial caretaker government.


Business & Economy »

DORP Founder Nouman attends 3rd World Congress in USA


Business Desk :AHM Nouman the Gusi Peace Prize International Laureate and Founder of Development Organization of the Rural Poor (DORP) will attend the 3rd world congress on Mother and Neonatal Nursing Care in Chicago, USA. The two-day long congress will be held on September 26-27, 2018, says a media release. ...

International »

After N Korea, Trump targets Iran with `maximum pressure`


AFP, United Nations :One year after mobilizing the international community against North Korea, Donald Trump is trying to force another arch enemy to the negotiating table by targeting Iran with a similar campaign of "maximum pressure."But if North Korea's leader Kim Jong Un has seen his standing with the US ...

International »

US Judge may dismiss Stormy Daniels lawsuit against Trump


Reuters, Los Angeles: President Donald Trump likely had a free-speech right to make a Twitter comment disputing allegations by adult film actress Stormy Daniels, a federal judge said on Monday, indicating he was inclined to dismiss her defamation lawsuit against Trump.Daniels, whose real name is Stephanie Clifford and who has ...

Entertainment »

Ekta Kapoor`s mantra in selecting platforms for content!


Touted as content czarina, Ekta Kapoor is undoubtedly the only female producer who has carved her niche in the industry with utmost excellence. Ekta Kapoor is currently riding high as she is juggling between multiple projects across various mediums. Ekta has set a benchmark when it comes to daily soaps. ...

Editorial »

Maldives' people reject authoritarian rule and voted for democracy


MALDIVES strongman President Yameen Abdul Gayoom conceded that he lost Sunday's election to his challenger Ibrahim Mohamed Solih, in a speech broadcast live on television Monday, according to the international media. Mr Yameen congratulated Solih and said, "I know I have to step down now."  The Election Commission said voter ...

Cricket »

'Rashid is best but not unplayable' says Mahmudullah


Mahmudullah Riyad sorted out a vigorous 74 against Afghanistan rescuing Bangladesh from a plausible downfall.Mahmudullah Riyad and Imrul Kayes stood tall in the middle when the team was languishing losing all five in the top order in a score of 87 on the board. The duo added 128 runs in ...

International »

Thousands attend funeral for Iran attack dead


AFP :Tens of thousands of mourners attended a funeral on Monday in the southwestern Iranian city of Ahvaz for soldiers and civilians killed in an attack on a military parade.Four militants attacked the Saturday parade marking the start of the 1980-1988 Iran-Iraq war, spraying the crowd with gunfire and killing ...

City »

Prime Minister Sheikh Hasina addressing a reception accorded to her by the expatriate Bangladeshis at a hotel in New York on Sunday.


Entertainment »

Mehazabien, Apurba in Puja special play


Sheikh Arif Bulbon :Popular pair of the small screen of present time Mehazabien Chowdhury and Ziaul Faruk Apurba worked together in a special play of Durga Puja for the first time. Title of the play is Priyo Tumi. Directed by Mahmudur Rahman Himi story of the play is written by ...

Editorial »

Attack on Iran`s elite guards


IRANIAN Supreme Leader Ayatollah Ali Khamenei accused US-backed Gulf Arab states of carrying out a shooting attack on a military parade that killed 25 people, almost half of them members of the country's elite Revolutionary Guards. Khamenei ordered security forces to bring to justice those responsible for one of the ...

Sports »

Bertens defeats Tomljanovic to secure Korea Open win


AFP, Seoul :Kiki Bertens defeated Australia's Ajla Tomljanovic in the Korea Open final on Sunday, securing her third WTA Tour singles title of the season to continue her career-best year.The second-seeded Bertens came back from break down in the deciding set to defeat the Australian in two hours and 22 ...

International »

World leaders gather at UN under threat from unilateralism


AP, United Nations :With rising unilateralism challenging its very existence, the United Nations convenes its annual meeting of world leaders Monday and will try once more to tackle problems together as a community of nations, addressing threats ranging from Mideast conflicts to the effects of global warming - and also ...

 
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