The New Nation - Internet Edition

APPELLATE DIVISION

(Criminal)

Md. Ruhul Amin-C.J.

Mohammad Fazlul Karim-J.

M. M. Ruhul Amin-J.

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 233 OF 2005

(From the Judgment and Order dated July 18, 2004 and July 19, 2004 passed by the High Court Division in Death Reference No. 64 of 2002 with Jail Appeal No. 666 of 2002)

The State ………Petitioner.

Vs.

Md. Mukul alias Swapan .. ….Respondent.

For the Petitioner : Mr. Mohammad Ali Akonda, Deputy, Attorney General instructed by Mr. Zainul Abedin, Advocate-on-Record.

The Respondent : Not represented.

Judgment: August 12, 2007

Penal Code, 1860-

Sections 302/333/224/34

When charge not proved beyond doubt by consistent and reliable evidence, conviction and sentence cannot be sustained.

Withholding of material evidence raises adverse presumption against the prosecution-

The allegations are that while the raiding party consisting of police personnels including the victim S.I Amzad went to arrest accused Mokul @ Swapan in the village in connection of a dacoity case during which 'deceased S.I Amzad received fatal injury in the hands of accused Mukul and thereafter S.I Amzad died in the Rajshahi Medical College Hospital. The trial Court convicted and sentenced accused Mukul to death penalty. The High Court Division rejected the Death Reference and acquitted the convict on benefit of doubt upon finding no reliable evidence on record and upon the finding that the deceased might have been injured elsewhere which the apex court held perfectly justified.

The High Court Division on consideration of the materials on record observed "It appears from the record that the Investigating Officer did not file the G.D. Entry dated 13.5.2002 which raises presumption under section 114(g) of the Evidence Act against the prosecution that had the G.D. Entry been filed it would go against the prosecution. Over and above, the learned D.A.G. could not offer any explanation for, non filing of the G.D. Entry and also could not controvert the argument of the learned State Defence Lawyer regarding leaving of the Police Station by the police personnel for arrest of a dacoit without any command certificate and also in plain dress and without any arms whatsoever.' The prosecution also could not offer any explanation regarding non-examination of S.I. Abdul Bari, vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. It may be mentioned that it is in the evidence, of the members of the raiding party that they did not raise any hue and cry at the time of occurrence but they have stated in their deposition that condemned prisoner Mukul was caught hold by the deceased and Mukul raised hue and cry, as a result of which other accused persons rushed to the place of occurrence. It is therefore, significant that none of the witnesses from this Village saw the injured S.I. Amzad at the place of occurrence or even heard about the occurrence. There is no evidence on record that anybody saw the raiding party at Chowgram village. The only local witness, namely P. W.7, allegedly saw the other accused persons assaulting village police with lathi and he did not see any police officer or victim Amzad. It is also important to note that according to the prosecution story injured Amzad was brought from the place of occurrence to Singra Thana Health Complex by an engine-driven tempo but curiously enough the tempo driver has not been examined in this case and none of the locality saw the victim at the place of occurrence or even at the place of occurrence village. Thus, the natural presumption is that the victim might have received the injury elsewhere and the command certificate has been intentionally withheld by the prosecution. …….(Para 10)

On consideration of the materials on record we are of the view that the High Court Division was quite correct in entertaining doubt about the prosecution case and thereupon acquitting the respondent on the finding that the prosecution failed to prove its case beyond reasonable doubt. The learned Deputy Attorney-General could not point out that the finding made by the High Court Division to the evidence on contrary to the materials on record or that finding as regards the nature and quality of the prosecution case is contrary to the evidence on record or upon incorrect consideration of the evidence brought on record by the prosecution …………..(Para 13)

JUDGMENT

MD. RUHUL AMIN-C.J: This petition for leave to appeal has been filed against the judgment dated July 18, 2004 and July 19, 2004 of a Division Bench of the High Court Division in Death Reference No. 64 of 2002 (heard with Jail Appeal No. 666 of 2002) rejecting the Death Reference and thereupon, allowing the jail appeal.

2. The death reference was made by the learned Sessions Judge, Natore upon convicting the respondent under sections 302/333/224 of the Penal Code and sentencing him to death by the judgment and order dated November 30, 2002 in Sessions Case No. 128 of 2002.

3. It appears that no separate sentence was passed under sections 333/224 of the Penal Code since maximum sentence was passed under section 302 of the Penal Code.

3. The learned Sessions Judge, Natore by the same judgment acquitted 4 other accuseds of the charge levelled under sections 302/353/333/224 read with section 34 of the Penal Code.

5. The 5 (five) accuseds were put on trial to answer the charges under sections 302/353/333/224 read with section 34 of the Penal Code.

6. The prosecution case as narrated by the P.W.I, the informant, is that the incident took place on May 13, 2002 at about 19.30 hours, that he being directed by Officer-in-Charge of Singra Police Station left the Police Station along with S.I. Amzad Hossain and three other Constables to arrest accused Mukul alias Swapan of a dacoity case and went to Chow gram village and looked there for Mukul alias Swapan at different places, that at one stage they came to know that the said dacoit was standing on a culvert over a village road by the side of Natore-Bogra Highway, that one local Dafader and 2 Chowkidars also joined with them and they proceeded for the place of occurrence. being divided in 3 (three) groups and proceeded to the said place from 3 directions, that the accused Mukul having had received the signal about presence of police in the area tried to flee away and at that time deceased S.I. Amzad caught hold of him and thereupon accused Mukul raised hue and cry for help and thereupon the other accused persons and the relatives of Mukul proceeded towards the place of occurrence with lathi, etc. and tried to snatch away the accused Mukul from deceased Amzad and that in the course of scuffling Mukul dealt blows by sword on the right side of the chest of S.I. Amzad and caused fatal injury and SI. Amzad fell down on the ground and the assailants fled away towards the east from the place of occurrence, that the informant and his companions chased Mukul but he could not be apprehended because of darkness, that S.I. Amzad Hossain was taken to Singra Thana Health Complex by a 'Tempo and therefrom he was taken to the Rajshahi Medical College for better treatment by S.I. Abdul Bari, Constable Bari and Constable Nurul Islam and the victim died there.

7. On the aforesaid incident S.I. Md. Obaidur Rahman P.W.I lodged the ejahar on 13.5.2002 at about 23.45 hours. The incident took place on 135,2002 at 19.30 hours.

8. On completion of investigation charge sheet was filed against 5 accused persons. At the time of trial charge was framed against the respondent and 4 others under different sections including 302 of the Penal Code.

9. The learned Sessions Judge on conclusion of the trial convicted and sentenced the respondent as stated hereinbefore and acquitted the 4 accuseds.

10. The High Court Division on consideration of the materials on record observed "It appears from the record that the Investigating Officer did not file the GD, Entry dated 13.5.2002 which raises presumption under section 114(g) of the Evidence Act against the prosecution. that had the GD. Entry been filed it would go against the prosecution. Over and above, the learned D.A.G. could not offer any explanation for non filing of the GD. Entry and also could not controvert the argument of the learned State Defence Lawyer regarding leaving of the Police Station by the police personnel for arrest of a dacoit without any command certificate and also in plain dress and without any arms whatsoever. The prosecution also could not offer any explanation regarding non examination of S.I. Abdul Bari, vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. It may be mentioned that it is in the evidence of the members of the raiding party that they did not raise any hue and cry at the time of occurrence but they have stated in their deposition that condemned prisoner Mukul was caught hold by the deceased and Mukul raised hue and cry, as a result of which other accused persons rushed to the place of occurrence. It is therefore, significant that none of the witnesses from the P.O. Village saw the injured S.I. Amzad at the place of occurrence or even heard about the occurrence. There is no evidence on record that anybody saw the raiding party at Chowgram village. The only local witness, namely P.W.7, allegedly saw the other accused persons assaulting village police with lathi and he did not see any police officer or victim Amzad. It is also important to note that according to the prosecution story injured Amzad was brought from the place of occurrence to Singra Thana Health Complex by an engine-driven tempo but curiously enough the tempo driver has not been examined in this case and no one of the locality saw the victim at the place of occurrence or even at the place of occurrence village. Thus, the natural presumption is that the victim might have received the injury elsewhere and the command certificate has been intentionally withheld in the prosecution.

The upshot of the above discussion is that the prosecution has not been able to prove its case beyond reasonable doubt.

11. On the aforesaid findings and decisions, the High Court Division rejected, the Death Reference and allowed the Jail Appeal filed by the condemned prisoner and thereupon acquitted the respondent herein of the charge levelled against him.

12. We have heard the learned Deputy Attorney-General and perused the materials on record.

13. On consideration of the materials on record we are of the view that the High Court Division was quite correct in entertaining doubt about the prosecution case and thereupon acquitting the respondent on the finding that the prosecution failed to prove its case beyond reasonable doubt. The learned Deputy Attorney-General could not point out that the finding made by the High Court Division is contrary to the materials on record or that finding as regards the nature and quality of the prosecution case is contrary, to the evidence on record or upon, incorrect consideration of the evidence brought on record by the prosecution.

14. In that view of the matter we find no substance in the petition.

15. Accordingly, the petition is dismissed.

High Court Division

(Criminal Revisional Jurisdiction)

Sharifuddin Chaklader J

Md Emdadul Haque

Azad J

Judgment

March 6th, 2008

Khokan Bhuiyan and others ttttt.Accused-Petitioners

vs

Md Ahsanullah, State ttt. Opposite Parties·

Negotiable Instruments Act (XXVI of 1881) Section 138

The object of crossing is to secure payment not to any particular bank, but to a banker, in order that it may be easily traced for whose use the money was received. The crossing operates as a caution to the banker.

Self-drawn or open cheque is generally issued for immediate payment. A drawer if himself presented the cheque and if it is bounced then no action can be taken in any form but when the cheque delivered to a person who is the creditor and it is bounced, then action can be taken as the cheque was given and became property of the person who presented it at the counter of the bank t. (12)

Akrokerri Atlantic Mines Ltd. vs Economic Bank, (1904) 2KB 464 ref.

AQM Shafiullah, with Md Ali Zinnah.

Advocates, For the Petitioners.

Md Rafiqul Islam Miah with SM Zahangir Alam,

Advocates-For the Opposite Parties.

Syed Haider Ali, Deputy Attorney-General-For the State.

Judgment

Sharifuddin Chaklader J: This Rule, at the instance of the accused petitioner, 1. Khokon Bhuiyan, son of Shahjahan Bhuiyan, and 2. Shankar Shaha, Proprietor Messrs Megna Yarn Trading, for quashing the proceedings of Sessions Case No. 653 of 2006 arising out of Complaint Registered Case No. 177 of 2006, under section 138 of the Negotiable Instruments Act, 1881, instituted by the opposite party No. 2, pending in the Court of learned District and Sessions Judge, Narayangonj.

2. This Rule was obtained after framing of charge by the learned Judge, on 7-1-2007.

3. Complainant opposite party Md Ahsanullah in the petition of complaint alleges that, he had a long standing business transaction with accused petitioner No. 1, Khokon Bhuiyan, accused petitioner No.2, Shankar Shaha, accused No. 1 Shahjahan Bhuiyan and co-accuseds who on behalf of Shahjahan and Company purchased cotton from the complainant and naturally transactions were taken place through self endorsed cheques and usually accused petitioner No.1 on behalf of accused No.1 and Company, signed the cheques and complainant got commission for the cotton purchase by the accused persons through accused Nos. 1-3; accused petitioner No. I gave 5 self endorsed cheques, amounting to Taka 18,29,132, Accused Nos. 3 to 5, of them accused No.4 is accused petitioner No.2, in the same way of accused No. 1 and 2 purchased through broker cotton and gave commission' to the complainant through self endorsed cheques; Commission at present stands at Taka 14 lac against which accused Nos. 3 and 5 gave self endorsed 3 cheques; when the complainant placed those cheques for encashment on 7-5-2006, 9-5-2006 and 10-5-2006, the cheques were dishonoured; in total complainant is due from the accuseds Taka 32,29,132 for the 8 cheques. Thereafter, the complainant issued a legal notice on 13-5-2006 through his lawyer, to which the accused petitioners gave reply through their lawyer; it appears the legal notice issued by the complainant was received by the accuseds on 15-5-2006. It has further been stated in the complaint that it is the demand of the business of cotton market of Tan Bazar that in order to make payment quickly, self endorsed cheques were given to the broker or to the commission agents. Accuseds appeared and all the accused persons were enlarged on bail. It appears that against accused No. 2 and 4, i.e. against the petitioners, charge was framed under section 138 of the Negotiable Instruments Act as they signed the self enforsed cheques for payment.

4. Mr AQM Shafiullah, learned Advocate for the accused petitioners, submits, that under Negotiable Instruments Act, there is no provision to institute proceedings against self endorsed cheques, it relates to the crossed cheques. Learned Advocate elaborately submits that if the self endorsed cheque bounced then no offence is committed as no one is cheated or no one loses any thing, as such, instant proceeding is liable to be quashed.

5. Mr Md Rafiqul Islam Mian, learned Advocate, on the other hand, submits that, it is a natural practice in the local market that self endorsed cheque was given to the broker or to the seller and received for quick disbursement of money as, it requires for continuation of the business. Learned Advocate further submits that, dishonouring of self endorsed cheque is not an offence if it is presented by the drawer but when delivered to the complainant, the cheque become the property of the complainant and after the said cheque bounced then natural1y, section 138 of the Negotiable Instruments Act can be invoked as money was not cashed which is the money of the complainant.

6. Question calls for determination is, if self-endorsed cheque dishonoured whether a proceeding under section 138 of the Negotiable Instruments Act is maintainable?

7. Let us consider section 138 of Negotiable Instruments Act. Section 138 of the Act has penalty for dishonouring of certain cheques i.e. when any cheque drawn by a person on an account maintained by him with a banker for payment of any amount to any person from out of that account is returned by the bank unpaid, either because of the money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid.

8. Dishonouring of cheque is the prime factor for initiating the proceedings and dishonouring of cheque means either for insufficient fund or the money mentioned in cheque exceeded the money arranged for. Now by Court's decision, stop payment, (AIR 1996 SC 2339, 1996 Supreme Court Yearly Digest 711, (1990) 2 PLR 269) refer to Drawer, funds not arranged or account closed, (Dada Silk Mills vs Indian Overseas Bank (1995) 82 Company Cases, 35 and V. Arunmughan vs Mk Ponusamy, (1995) 85 Company Cases 296 (Mad) also means dishonour of cheque.

9. Let us see what is meant by self-drawn cheque as submitted by the learned Advocate for the petitioners. Negotiable Instruments Act generally recognize two types of cheque, one is open cheque i.e. self-drawn cheque a self endorsed cheque and another is crossed cheque. In crossed cheque there are also certain categories i.e. crossed generally, (section 123) and crossed account payee (section 123 A).

10. Section 123 of the Act speaks for crossed cheque. Where a cheque bears a cross on its face an addition of the words "and company" or any abbreviation thereof, between two parallel transverse lines, or of two ·paralleled transverse lines simple, either with or without the words "not negotiable" that addition shall be deemed a crossing and the cheque shall be deemed to be crossed generally.

11. Section 123 A of the Act, speaks for cheque crossed account payee (1) where a cheque crossed generally bears cross on its face an addition of the words "account payee" between the two parallel transverse lines constituting the general crossing the cheque besides being crossed generally, is said to be crossed "account payee" (2) When a cheque is crossed "account payee" (a) it shall cease to be negotiable; and

(b) it shall be the duty of the banker collecting payment of the cheque to credit the proceeds thereof , only to the account of the payee named in the cheque.

12. Open cheques are cheques which are paid on presentation from the counter of the bank. Selfdrawn cheque as submitted, is nothing but open cheque. This type of open cheque has some risk as it may be 'lost or the cheque can be cashed by anyone to whom the money was not intended to pay or the payment may be stopped for which a case may be filed but it will be difficult to prove that it was issued in favour of drawee and as there was so many complications so, by the decision of Akrokerri Atlantic Mines Lid. vs Economic bank, (1904) 2KB 464 system of crossed cheque has been introduced to protect the interest of both drawer and drawee of the cheques. Both categories of cheques bear the same value, in open cheque or self-drawn cheque a risk is there and in crossed cheque such risk is not there as it is drawn through a bank. The object of crossing is to secure payment not to any particular bank, but to a banker, in order that it may be easily traced for whose use the money was received. The crossing operates as a caution to the banker. Selfdrawn or open' cheque is generally issued for immediate payment. A drawer if himself presented the cheque and if it is bounced then no action can be taken in any form but when the cheque delivered to a person who is the creditor and it is bounced, then action can be taken as the cheque was given and became property of the person who presented it at the counter of the bank.

l3. In the instant case, we find the disputed cheque is self endorsed cheque to the drawer to the complainant and it is not presented by the drawer i.e. accused petitioner. The complainant placed the cheque for encashment at the counter and banker gives his signature on the back side noting bouncement of the cheque, is sufficient compliance of section 138 of the Negotiable, Instruments Act as from the facts of the instant case it is clearly seen the cheque was given to the complainant knowing fully well that there is no money in the account to honour the cheque.

It also appears that not only the notice was given by the complainant but the accused petitioner gave a reply to the said notice speaks guilty device on the part of the accused petitioner who acted mischievously in paying the complainant the money on self endorsed cheque with a dishonest intention not to pay the huge money of which the complainant is entitled from the accused petitioner.

14. We find no substance in the Rule.

15. In the result, the Rule is discharged.

16. Communicate this order at once.

The order of stay granted earlier by this Court is vacated.