The New Nation - Internet Edition

Appellate Division

(Criminal)

MM Ruhul Amin CJ

Md Tafazzul Islam J

Md Abdul Matin J

Judgment

June 17th, 2008

Nizamuddin Mahmood ………….Appellant

vs

Abdul Hamid Bhuiyan and another…………Respondents*

Code of Criminal Procedure (V of 1898)

Section 561A

Negotiable Instruments Act (XXVI of 1981)

Section 138

Since the date of receipt is a question of fact to be ascertained at the time of trial non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence. . t.. (20)

Abdul Quader Chowdhury vs State 28 DLR (AD) 38; Habibur Rahman Howlader vs State 53 DLR (AD) III and Nurul Islam vs Md Ali Hossain Miah 50 DLR

(AD) 114 ref. t. .,(16-18)

Rokanuddin Mahmud, Senior Advocate instructed by Md Nawab Ali. Advocate-on-Record-For the Petitioner.

Mahmudul Islam, Senior Advocate and Mahbubey A lam. Senior Advocate instructed by Chowdhury Md Zahangir, Advocate-on-Record-For Respondent No.1.

Munsur Habib. Additional Attorney-General instructed by B Hossain, Advocate-on-Record-For Respondent No.2.

Judgment

Md Abdul Matin J: Complainant petitioner Nizamuddin Mahmood sought review of the judgment and order dated 15-6-2004 passed by this Court in Criminal Petition for Leave to Appeal No. 12 of 2003 dismissing the appeal and affirming the judgment and order dated 25-6-2002 of the High Court Division quashing the proceeding of Petition Case No. 515 of 2001 under section 138 of the Negotiable Instruments Act, 1881.

2. The appellant as the complainant filed a petition of complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent No. 1 stating, inter alia, that the complainant and the accused are involved in share business and being closely known to each other the complainant gave a loan of Taka 60,00,000 (sixty lac) to the accused who assured to reimburse the amount in no time and later issued two cheques in favour of the complainant dated 27-8-2000 one for Taka 45,00,000 (fortyfive lac) and another for Taka 15,00,000 (fifteen lac) and that the complainant presented the cheques on 10-2-2001 but the cheques being bounced he again presented the cheques on 25-2-2001 but still the cheques were returned unpaid on 26-2-2001 and then the complainant demanded the money sending a notice dated 10-3-2001 giving the accused 15 days' time to make the payment but still no payment being made the complaint was filed on 22-4-2001 and the learned Chief Metropolitan Magistrate took cognisance and the accused appeared before the court and was released on bail and thus the proceeding being started the accused filed an application under section 241A of the Code of Criminal Procedure praying to discharge him but the learned Magistrate rejected the application and then the accused filed Criminal Miscellaneous Case No. 5518 of 2001 under section 561A of the Code of Criminal Procedure praying to quash the proceeding and the High Court Division by the judgment and order dated 25-6-2002 made the Rule absolute quashing the proceeding.

3. Being aggrieved the petitioner moved this Court in Criminal Appeal 12 of 2003. This Court after hearing the parties by the judgment and order dated 15-6-2004 dismissed the appeal.

4. Thereafter, this review petition was filed and the learned Counsel appearing for the petitioner submitted that the finding of this Court to the effect that in view of the non disclosure of the date as to receipt of notice by the accused and failure to mention any legal cause of action in the petition of complaint the proceeding cannot be allowed to continue is an error apparent on the face of the record, inasmuch as "Such date of receipt of notice can never be within the knowledge of the complainant and requirement of its disclosure will result in stifling the prosecution and depriving the complainant from proving the prosecution case by evidence at the trial and that the presumption, under section 27 of the General Clauses Act as to the registered post will be applicable in the instant case and, as such, it will be deemed to have been served, on and received by the accused and that the accused respondent never denied receipt of the notice and that no complainant will ever know the date of receipt of the notice by the accused whereas the complaint is to be filed within the time mentioned in section 141(b) of the Negotiable Instruments Act, 1881."

5. He further submitted that the Court while giving the aforesaid finding appears to have failed to consider section 27 of the General Clauses Act, and if it was so considered the decision could have been otherwise.

6. Lastly, he submitted that the aforesaid decision is an error apparent on the face of the record which has resulted in prosecution under section 138 of the Negotiable Instruments Act being knocked down on this ground as the complainants are not being able to disclose the date of receipt of the notice which is in the exclusive domain of an accused and, as such, the decision has rendered section 138 nugatory.

7. Mr Amir-ul Islam, learned Counsel appearing for the respondent, opposed the petition submitting, inter alia, that the points now urged on behalf of the petitioner have been well answered in the judgment of this Court.

8. He further submitted that there being omission of the date of receipt of the statutory notice by the accused respondent and in the absence of date of cause of action for filing the complaint and, in fact, there being lack of cause of action giving rise to the complaint itself, the High Court Division in exercise of its jurisdiction rightly quashed the proceeding and did not exceed the jurisdiction nor misdirected itself in any way in its decision and that this Court in the judgment gave elaborate reasonings for justifying the judgment of the High Court Division and there is no error apparent on the face of the record and as such there is no reason for interference. He further submitted that a review is not rehearing of a matter already decided on merit.

9. Leave was granted to consider the above submissions. Heard the learned Counsel and perused the petition and the impugned judgment and order of this Division and other papers on record.

10. The learned Counsel submits' that the finding of this Division to the effect that in view of the non disclosure of the date as to receipt of notice by the accused and failure to mention any legal cause of action in the petition of complaint the proceeding cannot be allowed to continue; is an error apparent on the face of the record, inasmuch as 'such date of receipt of notice can never be within the knowledge of the complainant and requirement of its disclosure will result in stifling the prosecution and depriving the complainant from proving the prosecution case by evidence at the trial and that the presumption under section 27 of the General Clauses Act as to the registered post will be applicable in the instant case and, as such, it will be deemed to have been served on and received by the accused and that the accused respondent never denied receipt of the notice and that no complainant will ever know the date of receipt of the notice by the accused whereas the complaint is to be filed within the time mentioned in section 141 (b) of the Negotiable Instruments Act, 1881.

11. He further submits that this court while giving the aforesaid finding appears to have failed to consider section 27 of the General Clauses Act, and if it was so considered the decision could have been otherwise.

12. He lastly, submits that the aforesaid decision is an error apparent on the face of the record which has resulted in prosecution under section 138 of the Negotiable Instruments Act being knocked down on this ground as the complainants are not being able to disclose the date of receipt of the notice which is in the exclusive domain of an accused and, as such, the decision has rendered Section 138 nugatory.

13. Mr Mahmudul Islam, learned Counsel for the respondents, submits· that as per section 138(1)(C) of the Negotiable Instruments Act receipt of notice is important for determining cause of action for filing the complaint case and in the instant case the complainant having not given the date of receipt of the notice, there can be no cause of action for filing the instant case.

14. The learned Counsel for the respondents also referred to Section 141 of the Negotiable Instruments Act and submitted that this court was correct in approving the quashing of the case by the High Court Division.

15. It appears that the notice was sent by registered post and there is a presumption under section 27 of the General Clauses Act as to the registered post but this aspect was not considered earlier by this court.

16. It further appears that it is not possible to know about date of receipt of the notice for the complainant and such a fact is to be proved at the trial and generally in all cases the receipt of notice is denied and service is asserted and therefore, such a question cannot be decided in a proceeding under section 561 A of the Code of Criminal Procedure in view of the decision of this court in the case of Abdul Quader Chowdhury vs State reported in 28 DLR (AD) 38 where it was held that where assessment of evidence is involved the case cannot be quashed.

17. The learned Counsel submits that the complainant served a legal notice within fifteen days of the receipt of the information of return of the cheques in question and therefore, the question when it was received is not at all material for filing the case and non-disclosure of such a date cannot be a ground for quashing the proceeding. In support of his contention he has referred to the case of Habibur Rahman Howlader vs State reported in 53 DLR (AD) 111.

18. The learned Counsel refers to Section 27 of the General Clauses Act which speaks of a presumption of service of notice and in support of his contention he has referred to the case of Nurul Islam vs Md Ali Hossain Miah reported in 50 DLR (AD) 11 4.

19. We find substance in the submissions of the learned Counsel for the appellant.

20. Since the date of receipt is a question of fact to be ascertained at the time of trial non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence.

In such view of the matter the appeal is allowed and the judgment and order passed by this court dated 15-6-2004 and that of the High Court Division dated 25-6-2002 passed in Criminal Miscellaneous Case No. 5518 of 2001 are set aside and proceeding of the petition case No. 515 of 200 I under section 138 of the Negotiable Instruments Act, 1881 shall continue.

Appellate Division (Civil)

Md Fazlul Karim J Tafazzul Islam J

Md Joynul Abedin J

Judgment

July 23rd, 2007

Sena Kalayan Sangstha and

Another…Petitioners

vs

Sufi Fazal Ahmed and others tttttt Respondents *

Code of Civil Procedure (V of 1908) Order XLVII rule 1

Bangladesh Supreme Court (Appellate Division) Rules, 1988

Rule 24

Grounds for review-Unless there is serious ground relating to error of law apparent on the face of the record occasioning failure of justice review petition should not be entertained lightly.

The provisions under Articles 23 and 24 of the President's Order 16 of 1972 are intended to cover only orders passed with jurisdiction and afford no protection to orders passed without jurisdiction which can always be challenged in the Court, as an order without jurisdiction having no existence in the eye of law. The Civil Courts have general jurisdiction to ascertain whether the act or authority or executive officers order is passed with jurisdiction. No order is an order passed under any Act if it was not passed in exercise of power granted by the Act and was, therefore, without jurisdiction. . t.. (8)

Dr M Zahir, learned Counsel, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner (in both the CR Petitions).

MI Farooqui, Senior Advocate, instructed by MG Bhlliyan, Advocate-on-Record-For the Respondent No.1 (in both the CR Petitions).

Not represented-Respondent Nos. 2-5 (in both the CR Petitions).

Judgment

Md FazIu) Karim J : The two Review Petitions are directed against the judgment and order passed by this Division in Civil Appeal No. 45 of 1993 and Civil Appeal No. 86 of 1997. Since both the Review Petitions are between the same parties involving substantially the same facts and points of law, the same were taken up for hearing together and accordingly disposed of by this single judgment.

2. Civil Appeal No. 45 of 1993 by leave arose out of Civil Petition for Leave to Appeal No. 122 of 1993, which is directed against the judgment and decree dated 1-9-1992 passed by the High Court Division in Appeal from Original Decree No. 138 of 1990 affirming those dated 31-5-1990 passed by the Subordinate Judge, First Court, Chittagong in Other Suit No. 124 of 1987.

3. The suit was for a decree only for khas possession in respect of the suit land together with two-storied building standing thereon. The plaintiff filed Other Suit No. 131 of 1982 against the Government upon declaration that the suit property is not an abandoned property and declaration of his title to the suit property i.e. land and the residential building standing thereon, and ultimately obtained an ex parte decree to that effect which was maintained upto this Court but the defendants did not vacate the suit property and hence the plaintiff was compelled to file the instant suit for recovery of khas possession.

4. In Civil Appeal No. 86 of 1997 leave was granted in Civil Petition for Leave to Appeal No. 578 of 1997 directed against the judgment and decree dated 11-3-1997 passed-by the High Court Division in Civil Revision No. 1714 of 1992 affirming those dated 28-5-1992 passed by the Additional District Judge, 4th Court, Chittagong in Other Appeal No. 321 of 1990 reversing those dated 13-5-1990 passed by the Subordinate Judge, First Court, Chittagong in Other Suit No. 139 of 1982.

5. The respondent No. 1 filed Other Suit No. 139 of 1982 in the First Court of Subordinate Judge, Chittagong for declaration of title, recovery of khas possession and mesne profit.

6. Dr M Zahir, learned Advocate, appearing for the petitioners, submitted that both the civil suits were barred under Articles 23 and 24 of the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (President's Order No. 16 of 1972) and that this aspect was not considered in both the appeals and was also not urged at any stage of the suits leading to Civil Appeals.

7. But the plaintiff never agitated raising the issue in the suits before the Courts below and, as such, the issue would not be entertained at this stage. However, as a matter of fact, the management of the property although was with the plaintiffs son Nazir Mohiuddin who was also the Managing Director when the land and the industry and the residential building were taken over by the Government on 31-12-1971 under the purported exercise of power under Acting President's Order No. SRO-XII-M-35/71/17 dated 26th December, 1971 published in the Bangladesh Gazette Extraordinary dated January 3, 1972.

8. However, the provisions under Articles 23 and 24 of the President's Order 16 of 1972 are intended to cover only orders passed with jurisdiction and afford no protection to orders passed without jurisdiction which can always be challenged in the Court, as an order without jurisdiction having no existence in the eye of law. The Civil Courts have general jurisdiction to ascertain whether the act or authority or executive officer's order is passed with jurisdiction. No order is an order passed under any Act if it was not passed in exercise of power granted by the Act and was, therefore, without jurisdiction. The decided decision apart from the case of Secretary of State vs Mask reported in AIR 1945 (PC) 709 notable, amongst others, are Abdur Rauf vs Abdul Hamid Khan, 17 DLR (SC) 515 and Md Jamil vs Improvement Trust. Rawalpindi. 17 DLR (SC) 520.

9. The learned Counsel appearing for the petitioners submitted that these suits do not address the issue regarding maintainability of the suit itself against the declaration in respect of the abandoned property in view of the fact that the suits are not maintainable, as such, the impugned order in appeal is liable to be disturbed by way of review. We have perused the impugned judgment and it appears that though in the written statement in omnibus manner it was stated that the suit is not maintainable but the defendant did never agitate the issue nor cared to suggest an issue to that effect or that no issue was urged to be framed by the trial Court. The Court accordingly proceeded to hear the suit and same is the case in the appellate Court as well. No such point as urged was ever urged in the High Court Division and before this Division. But in review the petitioner for the first time has ever urged the point as to maintainability of the suit.

10. We have perused the record of the suits and find that the Other Suit No. 124 of 1982 was for recovery of possession in respect of the two-storied building claiming title thereto and it may be mentioned that previously Other Suit No. 131 of 1982 was filed by the respondent in the 1st Court of Subordinate Judge, Chittagong against the defendant Nos. I and 5 for declaration that the suit property was not an abandoned one and upon a decree which was set at rest in favour of the plaintiff-respondent and in that view of the matter it does not lie in the mouth of present petitioner to allege that the suit is not maintainable due to abandoned nature of the suit land. Similarly, in Civil Appeal No. 86 of 1982 which arises out of Other Suit No. 139 of 1992 for declaration of title, recovery of khas possession in respect of the industry named Messrs Fasons Metal Industries at 287/288, Baizid Bostami Industrial Area, Chittagong. The plaintiff took stand that the management of the industry was always with the plaintiff through his son Nazir Mohiuddin who was present althrough in Bangladesh and actively participated in the conduct, management and control as the Managing Director of the industry concerned when the land and the industry and the residential building were taken over by the Government under the purported exercise of power under Acting President's Order No. SRO-XII-M-35171/17 dated 26th December, 1971 published in the Bangladesh Gazette Extraordinary dated January 3, 1972. It was also decreed in favour of the plaintiff which go to show that the issue regarding the character of the property was set at rest in previous suit and, in that view of the matter, it is begging the same question again in the present review petition arising out of subsequent suit. Over and above, the petitioner or its predecessor did never assert by forming any issue as to the abandoned character of the suit land or industry in the suits. So, it does not lie in the mouth of the present petitioner that the Court below ought to have considered the issue regarding the maintainability of the suit on alleged abandoned nature.

11. Be that as it may, we like to reproduce the submission made by the learned Counsel for the petitioner in Civil Appeal No. 86 of 1997 that "Mr Mahmudul Islam, learned Counsel, appearing for the appellant, submitted that the property having been taken by a notification dated 13-12-1971 under Acting President's Order No. I M-3517 J-13 and on repeal of the said order by APO No. I of 1972, the property was purported to have been taken over under APO No. I of 1972 by virtue of Article 6(2) of the said order APO No: I of 1972 and therefore, the property comes within the definition of abandoned under Article 2 of Po No. XVI of 1972, which came into force on 28-2-1972."

12. The learned Counsel further submitted that in view of the plaintiff's claim that he went to Hajj in November, 1971 leaving his family in Bangladesh and was stranded there until he came back in Bangladesh in 1973 on Pakistani passport, which he surrendered and was given citizenship of Bangladesh and during his absence his son was managing the affairs of the industry when it was taken over by the Government; in that premises the Acting President's Order dated 26-.12-1971 authorised the Government to take over any industry the owner and top management which are not available in Bangladesh.

13. We have considered the submissions made by the learned Counsels in both the appeals and have answered the points raised in our exhaustive judgments disposing of the appeals. This judgment has been sought to be reviewed in both the Civil Review petitions on the grounds as many as eleven in number reiterating the same arguments which the learned Counsels had advanced in the Civil Appeals and were overruled by this Court. Thereafter, the learned Counsel has raised the present issue regarding maintainability. This point was not even disclosed in the written statement and accordingly was not urged at any stage of the suit. Apart from the fact that this point was set at rest in previous Other Suit No. 131 of 1982 between the parties over the suit property but being not raised at any stage of the suit not to speak of the initial stage and no decision was arrived at by the Court below, the petitioner could not agitate the issue regarding maintainability of the suit at this stage. It may be stated here that the Courts below impliedly decided the point while deciding other issues in the suit. We reiterate the observations made with regards to review in the case of Abdul Halim Miah vs Secretary, Ministry of Establishment, 12 MLR (AD) 209, 221 that "Before we part with, this is to be remembered that 'review' under Order XXIV of the Supreme Court of Bangladesh (Appellate Division)

Rules, 1988 or under Order XLVII, rule 1 of the Code of Civil Procedure is subject to law and rules but could not be a substitute of an appeal for rehearing the impugned judgment and order passed in appeal; and for correcting the same unless there is an error apparent on the face of the record based on evidence or material on record."

14. Supreme Court of India also held the same view of the case of Sow Chandra Kanfe vs Sheikh Habib, (1975) 1 SCC 674. It runs as; "Once an order has been passed by the Supreme Court, a review thereof must be subject to the rules of the same and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different Counsels of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. It is neither in fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for Counsel to issue easy certificate for entertainment of review and fight over again the same battle, which has been fought and lost."

15. A review, by no stretch of imagination, could be termed as an appeal or rehearing of an issue directly or indirectly disposed of earlier or never agitated unless there is any error apparent on the face of the record or for any substantial reason.

16. Accordingly, for the reasons stated above, we do not find any substance in the submissions for the learned Counsel of the petitioners.

The review petitions are, accordingly, dismissed without any order as to cost.