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.