The New Nation - Internet Edition

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

Sheikh Abdul Awal-J.

Criminal Miscellaneous case No. 15120 of 2005.

(An application U/S 561A of the Code of Criminal Procedure.)

Md. Emdadul Hasan Chowdhurytt..Accused - Petitioner.

Vs.

Kowser Ahmed and another tttt..Opposite Parties.

For the Petitioner: Mr. M. Khaled

Ahmed, Advocate.

For the Opposite Party No.1:

Mr. Md. Golam Mostafa, Advocate

Judgment: 26 July, 2006

Code of Criminal Procedure,

1898-

Section 561A- Whten no offence is disclosed proceedings may be quashed even before taking cognisance

Negotiable Instruments Act, 1881-

Section 138(c)- Complaint which does not contain any cause of action or constitute any offence-

When the allegations taken together at their face value do not disclose any offence, the proceedings may be quashed even before taking cognisance.

Be that as it may, it is now well settled that the proceeding of the case at any stage may be quashed even at the initial stage before taking of cognisance where allegations in the First Information Report or the Complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged. Besides, in the present case the Magistrate on examining the complainant under section 200 of the Code of Criminal Procedure took cognisance against the accused petitioner under section 138 of the Negotiable Instruments Act, 1881 by his order dated 14. 8.2005…………….(Para 8)

Considering all these factual aspects of the case, vis-a-vis the law and the decisions of the highest Court as cited,, we have come to the conclusion that since the petition of complaint itself does not disclose any date of arising cause of action as required by section 138 (c) of the Negotiable Instruments Act, the proceeding cannot be allowed to continue and as such, it is liable to be quashed. ………….(Para 9. 1. The Court, on scrutiny of the materials on record, rightly took cognizance against the accused petitioner under section 138 of the Negotiable Instrument, Act, 1881 since in the petition of complaint there is a specific allegation that the accused petitioner issued a cheque for Tk. 5,23,884/= for repayment of loan money and subsequently the said cheque was placed for encashment in the bank but it was returned as unpaid with the remark that the fund was insufficient to honour the cheque, which clearly discloses the ingredients of section 138 of the Negotiable Instrument, Act. Finally, Mr. Mostafa contends that, the application under section 561A is not maintainable on the ground of pre-maturity inasmuch as before framing of charge under section 241A, CrPC the accused petitioner approached this Court and, as such, on that count the Rule is liable to be discharged.

We have heard the learned Advocates of both the sides at length and perused the Rule petition, counter-affidavit along with other connected papers as annexed therewith. In order to appreciate the submissions of the learned Advocates for both the parties, it would be better if we reproduce the petition of complaint, which reads as follows:

wb‡e`b GB,

weev`x e¨emv‡q wewb‡qvM myweavi AvIZvq FY Pzw³ I gÄyix c‡Îi AbyK‚‡j Dc‡iv³ e¨vsK nB‡Z mgqgZ cwi‡ekv‡ai k‡Z© FY MÖnY K‡ib ciewZ©‡Z mgqgZ FY c‡iv‡kva K‡ib †bB| e¨vsK KZ©„c¶ evi evi ZvMv`v †`Iqvi ci wZwb D³ e¨vs‡Ki Zvnvi GKvD‡›U GKLvbv †PK cÖ`vb K‡ib hvnv e¨vsK KZ©„c¶ KZ©„K wWmAbvi nBqv‡Q| wZwb Zvnvi GKvD‡›U UvKv bvB Rvwbqv I Ges UvKvi †Kvb e¨e¯’v bv Kwiqv †PK cÖ`vb Kwiqv‡Qb| hvnv Dc‡iv³ AvB‡b `Ûbxq Aciva| weev`xi Kv‡Q e¨vs‡Ki †gvU 5,2,884 UvKv gvÎ|

AÎ m‡½ weev`x cÖ`Ë †PK bs 3190776 Ges wWmAvbvi wk‡ci d‡UvKwc `vwLj Kwijvg|

From a plain reading of the petition of complaint, it appears that one Kawsar Ahmed, Senior Officer, Islami Bank Bangladesh Limited, Central Road, Moulvibazar as a complainant filed a petition of complaint without disclosing the date of presenting and dishonoring the cheque and in the petition of complaint the complainant did not mention the date when the notice was sent to the accused and on which the notice was received by the accused petitioner as required under the proviso (b), (c) of section 138 of the Negotiable Instrument, Act for filing the complaint. Therefore, in absence of any date when steps are taken according to the provisions of section 138 of the Negotiable Instrument, Act for availing .the remedy under the said section, we find substance and force in the submissions of the learned Advocate Mr. M. Khaled Ahmed that the instant proceeding under section 138 of the Negotiable Instrument. Act is not maintainable in view of the restriction by proviso (b), (c) of section 138 of the Negotiable Instruments Act, 1881 and thus the instant criminal proceeding being not sustainable in law.

Mr. Md. Golam Mostafa, the learned Advocate in order to fortify his argument that the application under section 561A, CrPC is premature as the charge of the case under section 241A has not yet-been framed, heavily relied on the decisions reported in 48 DLR 102 and 15 BLD (AD) 115.

In the case of Liton Vs. State and others reported in 48 DLR 102, wherein it has been held that a person accused in a criminal case can only prefer an application under section 561A for quashing the said proceeding if he becomes previously unsuccessful in his application either, under Section 265C or 241A, Cr.PC otherwise his application under 561A shall be premature.

In the case of Syed Mohammad Hashem @ Hashim Vs. The State reported in 15 BLD (AD) 115 it has been laid down as follows:

"It may be mentioned that the Privy Council in the case of Emperor Vs. Nazir Ahmed, AIR(32) 1945 P.C. 18 approved the view taken in a Madras case that the High Court Division may interfere under section 561A even during police investigation if no cognisable offence is disclosed and still more if no offence of any kind is disclosed because in that case the police would have no authority to undertake an investigation. In the case of N. Mahmud Vs. M. Ahmed, 1984 BLD (AD) 91= 1984(36) DLR(AD) 14, Badrul Haider Chowdhury, J. referred to an earlier case Abdul Quader Chowdhury Vs. State 28 DLR (AD) 39 and took it to be a settled provision of law that there may be cases where allegations in the First Information Report or the complaint even 'if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and in such cases it would be legitimate for the High Court Division to hold that it would be manifestly unjust to allow process of the Criminal Court to be issued against an accused person. In that case Masud, J. observed that proceeding before a Court starts when the Magistrate takes cognisance of an offence on Police report or on complaint. Before such cognisance, there is no proceeding that may be quashed under Section 561A, Cr.P.C. Process is issued only after taking of cognisance. We are leaving this matter presently by pointing out that ordinarily the view taken by Masud J. is correct and the same is being followed in our Court since long. But that is not to say that the view expressed in 28 DLR (AD) 39 and referred to by Badrul Haider Chowdhury, J. is not correct. There may be one case out of a thousand where the High Court Division will be justified in interfering even at the initial stage before taking of cognisance. But the usual and well-settled practice is that a criminal proceeding can only be quashed after cognisance has been taken and process issued thereupon subject to the fundamental principle that the power of quashing is and should be very sparingly exercised only and only to prevent the abuse of the process of the Court."

We have studied those decisions as best as we could do, we find the short-cut general principles before entering into the merit of the case as enunciated in the decision reported in 48 DLR-102 has been over ruled by our Apex Court mainly in the case of Latifa Akhter and others Vs. State and another reported in 51 DLR (AD) 159. The above quoted principles as laid down in the case of Syed Mohammad Hashem @ Hashim Vs. The State, reported in 15 BLD (AD) 115 in no way help the complainant opposite party No.1 rather, it finds support in the contention as raised by the learned Advocate for the accused petitioner, inasmuch as the allegations as embodied in the petition of complaint even if they are taken as a whole and accepted on its face value, do not constitute the offence under section 138 of the Negotiable Instruments Act, 1881 since the complainant in the complaint petition did not disclose the date of arising of the cause of action for filing the complaint as required by section 138 (c) of the Act.

Therefore, neither the 48 DLR I02 nor 15 BLD (AD) 115 case in fact, comes in aid of the complainant opposite party No. 1, although, the Magistrate, 1st Class, Moulvibazar without appreciating the case from a correct angle, most illegally and arbitrarily took cognisance on the basis of the petition of complaint (Annexure-A) under section 138 of the Negotiable Instruments Act against the accused petitioner.

Be that as it may, it is now well settled that the proceeding of the case at any stage may be quashed even at the initial stage before taking of cognisance where allegations in the First Information Report or the Complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged. Besides, in the present case the Magistrate on examining the complainant under section 200 of the Code of Criminal Procedure took cognisance against the accused petitioner under section 138 of the Negotiable Instrument Act, 1881 by his order dated 14.08.2005.

Considering all these factual aspects of the case, vis-a-vis the law and the decisions of the highest Court as cited above, we have come to the conclusion that since the petition of complaint itself does not disclose any date of arising of the cause of' action as required by section 138(c) of the Negotiable Instruments Act, the proceeding cannot be allowed to continue and as such it is liable to be quashed.

In the result, Rule is made absolute. The proceeding of C.R. Case No. 603 of 2005 (Sadar) under Section 138 of the Negotiable Instruments Act, 1881 now pending in the Court of Magistrate, 1st Class, Moulvibazar is quashed.

Communicate the order to the Court concerned.

Cases cited:

* N. Mahmud Vs. M. Ahmed, 1984 BLD (AD) 91= 1984(36) DLR(AD) 14

* Abdul Quader Chowdhury Vs. State 28 DLR (AD) 89.

* Latifa Akhter and others Vs. State and another, 51 DLR (AD) 159.

Appellate Division

(Civil)

Md. Ruhul Amin¾C.J.

M.M. Ruhul Amin¾J.

Md. Tafazzul Islam¾J.

Md. Hassan Ameen¾J.

Civil Petition for Leave to Pppeal No. 67 of 2007.

(From the judgment and order dated 12.12.2006 passed by the High Court Division in Civil Revision No. 2633 of 2004).

Belal Hossain ……..Petitioner.

Vs.

Kazi Jane Alam & others ……………….Respondents.

For the Petitioner : Mr. A.J. Mohammad Ali, Senior Advocate instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent No. 1 : Mr. Abdul Wadud Bhuiyan, Senior Advocate instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.

Respondent Nos. 2-7 : Not represented.

Judgment : 8 May, 2007

Local Government (Union Parishads) Ordinance, 1983-

Section 7(2) (Chha)- Loanee failing to repay in time any instalment of loan money of a financial institution becomes defaulter-

Sub-section (2) (Chha) of Section 7 of the Local Government (Union Parishads) Ordinance, 1983 expressly provides that a person who has failed to repay even a single instalment of loan money of a financial institution (Janata Bank) within the specified time is a defaulter and becomes disqualified for contesting in election. The apex court, in that view of the matter, held the petitioner disqualified and upheld the declaration of his election as void.

Section 7 (2) (Chha) of Local Government (Union Parishads) Ordinance, 1983 provides that if any of the instalments granted to a loanee by the Financial Institution is not paid within the prescribed period for payment of the instalment, the loanee shall be a defaulter within the meaning of Section 7(2) (Chha) of the Ordinance. ………..(Para 10)

JUDGMENT

M.M. Ruhul Amin-J : This petition for leave to appeal is directed against the judgment and order dated 12.12.2006 passed by a Single Bench of the High Court Division in Civil Revision No. 2633 of 2004 making the Rule absolute.

2. Short facts are, that the petitioner filed Election Petition Case No. 3 of 2003 in the Court of Assistant Judge, Muladi, District-Barisal and Election Tribunal for declaration that the election of the opposite party No. 1 for the office of Chairman of No. 4 Gachua Union Parishad, Muladi, District-Barisal was void and the petitioner be declared elected, on the ground, that the opposite party No. 1 was a loan defaulter of Janata Bank, Corporate Branch, 110, Motijheel C/A. Dhaka in addition to other grounds. The contenton is that the opposite party No. 1 took loan of Tk. 25 lac from the said Branch of Janata Bank on condition to repay the entire money in 10 years' time at a monthly instalment of Tk. 41,250/- but did not repay the said loan and thereby became a defaulter and was disqualified to be elected as Chairman and/or to continue as a Chairman of the concerned Union Parishad.

3. The opposite party No. 1 of the case contested the election petition by filing a written objection denying all the material allegations but admitted that he has availed loan of Tk. 25 lac from the Janata Bank Corporate Branch, Dhaka in 2002 repayable in 10 years and he paid 6/7 instalments. Therefore, he is neither a defaulter nor defaulted in payment of monthly instalments to the Bank and the bank has not instituted loan case in any court against him. The opposite party No. 1 filed an additional written objection on 1.11.2003 in the election case showing deposit of loan money as under:--

The date of deposit Amount

14.08.2001 60,000/-

23.12.2001 1,40,000/-

24.04.2002 1,00,000/-

28.12.2002 90,000/-

29.12.2002 64,000/-

01.10.2003 5,000/-

4. The Election Tribunal on consideration of the materials on record and upon hearing the parties found that the opposite party No. 1 became a defaulter in repayment of loan money received by him from Janata Bank and thereby became disqualified and accordingly, allowed the election petition. On appeal in Election Appeal No.1 of 2003 before the learned District Judge and the Election Appellate Tribunal, Barisal considering a circular (being No. 10 dated 14.05.2001) issued by the Bangladesh Bank and Sub-section 5 (ga ga) of Section 5 of the Bank Company Ain, 1991 held that the opposite party No. 1 is not a defaulter and accordingly, allowed the appeal.

5. Being aggrieved, the petitioner before the Election Tribunal moved the High Court Division and obtained the Rule, which after hearing was made absolute.

6. We have heard Mr. A.J. Mohammad Ali, the learned Counsel for the petitioner and Mr. Abdul Wadud Bhuiyan, the learned Counsel for respondent No.1 and perused the judgment of the High Court Division and other connected papers.

7. It is not disputed that the opposite party No.1, the present petitioner took loan of Tk. 25 lac from Janata Bank, Corporate Branch, 110 Motijheel C/A. Dhaka and as per statement submitted by him in his additional written objection dated 1.11.2003 he deposited in total a sum of Tk. 4,59,000/- Tk. 60,000/- on 14.8.2001, Tk. 1,40,000/- on 23.12.2001, Tk. 1,00,000/- on 24.04.2001, Tk. 90,000/- on 28.12.2002, Tk. 64,000/- on 29.12.2002 and Tk. 5,000/- on 01. 10. 2003.

8. It is also not disputed that he is to repay the loan by monthly instalment of Tk. 41,250/- within a period of 10 years from his own statements as made in the additional statement. It is clear that he defaulted in making monthly instalments after payment of 1st instalment he did not repay the 2nd monthly instalment rather, he paid instalments after a lapse of 4 months, 8 months and 10 months.

9. The High Court Division referring to the decision in the case of Nur Mohammd Vs. Badruddoza Chowdhury and another reported in 42 DLR (AD) 116 observed that in that case it was held that on failure to pay any instalment of the loan the loanee should be taken as defaulter in view of the nature of duties of such public office of opposite party No.1 petitioner.

10. The learned Counsel for the petitioner has drawn our attention to Sub-section (Ga Ga) of Section 5 of the Bank Company Ain, 1991 and also Bangladesh Bank Circular No. 10 dated 14.5.2001 and submitted that in terms of sub-section (Ga Ga) of Section 5 the opposite party No. 1 petitioner is not a loan defaulter. Section 2 of Bank Company Ain 1991 (Act 14 of 1991) provides that provision of said Act shall not affect the provisions of any other law for the time being in force and also is not in addition to the provisions of any other existing law. Section 7 (2) (Chha) of Local Government (Union Parishads) Ordinance, 1983 provides that if any of the instalments granted to a loanee by the Janata Bank is not paid within the prescribed period for payment of the instalment,the loanee shall be a defaulter writhing the meaning of Section 7(2) (Chha) of the Ordinance.

11. Therefore, in view of the discussions made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

12. Accordingly, the leave petition is dismissed.

Case cited :

* Nur Mohammad Vs. Badruddoza Chowdhury and another, 42 DLR (AD) 116.

(From previous issue)

Accordingly, a letter, was written, vide Memo No. 1382 cri dated 30-10-2004' for determining the age of the accused persons, Two reports, are found in the record which were sent from the Department of Forensic Medicine.: Khulna; Medical College, Khulna vide Memo No. KMC/FM/ML/ 2004/85 dated 18-11-2004 and No.KMC/FM/ML/ 2004/85 dated 18-11-2d04. These reports were not exhibited as the concerned medical officer has not come to the Tribunal to prove there reports and, as such, the reports were not taken into evidence. In these reports, the age of accused Rahamatullah was' shown above 19 years and the age of accused 'Md. Saltu was shown about 16 years and 6 months. As per law, the age of the accused is determined from the date of framing of charges against the 'accused: Charges in this case was framed on 29-4-2004 According to the medical report dated 18-11-2004 the age of accused Rahamatullah stands at 18 years 5 months 20 days and the age of Md Saltu stands at 15 years 11 months 20 days as on 29-4-2004 when the charges were framed. As per this medical report the accused Saltu is minor.

23. Mr Shamsul Alam, the learned Advocate for the appellant, submits that, the accused Rahamatullah has filed school certificate given by the Head Master in Elangi Mofizuddin Secondary School. As per that certificate, the date of birth of Rahamatullah is on 5.6-1989 and as per that certificate' the age of Rahamatullah stands at 15 years 11 month on 29-4-2004 on the date when the charge was framed against him. So, as per that school certificate, the accused Rahamatullah is minor on the date of framing charge on 29-4-2004.

24. It is to be mentioned here that this school certificate has not been exhibited as the head master did not come to prove it. So, this certificate cannot be taken into evidence at this stage of appeal. As per medical report, we lind that the age of Rahmatullah stands as 19 years 5 months 20 days as on 29-4-2004 when the charge was framed against him. So, we-' find two dates of birth of accused Rahamatullah. In this connection, the learned Advocate Alam for the appellants referred to the decision in the case of Arun Karmaker vs State reported in 2002 BLD (AD) 76 in which our Appellate Division held that the Radiologist's opinion cannot be preferred to positive evidence like school certificate.

25. In view of the above discussion, it is the duty of the trial Court to ascertain first whether, the appellants were major or minor in order to arrive at a decision as regard his jurisdiction but the learned Judge of Speedy Trial Tribunal did not apply his judicial mind in determining this issue first and avoided this issue nor did he mention any thing as regards the age of convict appellants in the order sheet or in his judgment.

26. After getting the report from the medical officer; it was the duty of learned Judge of Speedy Trial Tribunal to serve summons upon him to prove the medical report but he did not do so. It was also his duty to make attempt to prove the school certificate of' accused Rahamatullah summoning the head-master of the school to prove the certificate given by him. But the learned Judge without performing his legal duty in order to ascertain his jurisdiction he illegally convicted the accused persons under different terms as stated hereinbefore.

It further, appears from the medical report of accused Saltu that he was minor at the time of framing charge against him, though the age of other accused Rahamatullah was shown major. It is the established principle of law that there is no chance, of joint trial of youthful offender and all adult. No matter what offence is alleged, irrespective of seriousness of the act, a juvenile is to be tried separately from adults in accordance with provisions of the Children Act. Our courts have strictly interpreted this provision in a number of cases including the State, -vs Deputy Commissioner, Satkhira, reported in 45 DLR 643

27. In view of the above facts and circumstances, it appears to us that the learned Judge Speedy Trial Tribunal committed an error of law in not determining first the age of the accused in order to ascertain his jurisdiction. When his jurisdiction was questioned he ought to have decided this issue first. But the learned Court without ascertaining this issue, illegally proceeded to dispose of the case which is highly irregular also.

28. Since both the medical report and the school certificate have not been proved, so we refrain from passing any comment regarding the major or minor status of the appellants and this issue is to be decided at the trial giving the parties opportunity to adduce their respective evidence on this issue.

After ascertainment of this issue, if the accused persons were found to be below 16 years on the date of framing of issue, they are to be tried by the Juvenile Court. If one of them is found minor, then the case should be splitted up and the minor is to be tried by Juvenile Court and the major one should be tried by the Speedy Trial Tribunal. If both, are found majors, Speedy Trial Tribunal is to decide the case giving reasons on the basis of new evidence on the point of age and on the evidence taken earlier. The parties are at liberty to adduce evidence on the issue of age without reopening the case.

29. The appeal: therefore, succeeds.

30. In view of the above matter, we have no other alternative but to send the case back on' remand to the learned Speedy Trial Tribunal for ascertaining the age of the accused persons and to determine his jurisdiction first and to dispose of the case according to the provision of law and guide-lines, as stated hereinbefore.

31. In the result, the appeal is allowed and the impugned judgment and order dated 31-1-2005 passed by the learned Judge, Speedy Trial Tribunal, Khulna in Speedy Trial Tribunal Case No. 37 of 2004 convicting the appellants under various sections and sentencing them thereunder to suffer rigorous imprisonment for different terms as stated hereinbefore are set aside.

32. The case is sent back on remand to the Speedy Trial Tribunal, Khulna for a fresh hearing of the case in 'accordance with law' and in the observations made in the body of the judgment. The accused persons will remain in custody till disposal of the case.

In view of the fact that this is an old case, it is necessary, in the interest of justice, to be disposed of expeditiously. The learned Speedy Trial Tribunal Judge is directed to dispose of the case within 4(four) months from the date of receipt of the case records with notices to the contending parties.

Send down the records along with the copy of the judgment immediately.

(Concluded)