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.