সতর্কীকরণ! বিডি কানুনে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে বিডি কানুন কোন নিশ্চয়তা প্রদান করে না। বিডি কানুনে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
BEFORE THE LEARNED JOINT SESSIONS JUDGE, ADDITIONAL COURT, JESSORE
SESSIONS CASE NO. 848 OF 2020
Arising Out of C.R. Case No. 1450 of 2019
Section 138 of Negotiable Instruments Act, 1881.
Lanka Bangla Finance Limited
...............Complainant
vs.
Md. Mostofa Amzad
..............Accused-Petitioner
Subject: Application on behalf of the accused-petitioner under section 265C of the Code of Criminal Procedure, 1898 to discharge the accused-petitioner.
The humble petition on behalf of the accused-petitioner states as follows:
That the complainant filed the instant case under sections 138 of Negotiable Instruments Act, 1881 against the accused-petitioner alleging, inter alia, that the accused-petitioner availed loan facilities from the complainant and for loan repayment the accused-petitioner issued the alleged cheques and on 10.06.2019 when the complainant presented the said cheques for encashment before the Mutual Trust Bank, Jessore Branch the same was dishonored on same date on ground of ‘Insufficient Fund/Advice Not Received’. Being aggrieved thereby, the complainant served legal notice on 26.06.2019 but the same met with no result, hence, the instant case.
That all these claims of the Complainant are misconceived and misguiding. The Complainant has misguided this Court of law and justice to harass and victimize the accused-petitioner. The statements of the Complainant are also absolutely misconceived, malafide, and arbitrary.
That from the complaint petition, no clear indication of the ingredients of Section 138 of the Negotiable Instruments Act, 1881 can be found. Therefore, the very complaint petition does not disclose any offence under section 138 of the said Act, hence, the accused-petitioner may kindly be discharged for the ends of justice.
That in reality, the Complainant took the cheques from the accused-petitioner in the ordinary course of business which were blank. Afterwards, they filled up the said cheques as per their whimsical wish and unilaterally and arbitrarily presented it and caused the said cheques to be dishonored of which the accused-petitioner had no prior knowledge. The cheques were blank and undated and complainant filled up the cheques and put an imaginary amount on it as per their sweet will which is equal to ‘Material Alteration’ as per section 3 (f) of the Negotiable Instruments Act, 1881 and such kind of alteration discharges the instant accused-petitioner from all liability in respect of the consideration thereof as per section 87 of The Negotiable Instruments Act, 1881. Section 3 (f) & section 87 of The Negotiable Instruments Act, 1881 is as follows:
“3.(f) “material alteration” in relation to a promissory note, bill of exchange or cheque includes any alteration of the date, the sum payable, the time of payment, the place of payment, and, where any such instrument has been accepted generally, the addition of a place of payment without the acceptor's assent.
87. Any material alteration of a Negotiable Instruments renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.”
Since, material alteration has been made with reference to the impugned cheques, such kind of alteration of the cheques renders the same as void and nugatory in the eye of law and therefore the accused-petitioner cannot legally be held liable in any manner whatsoever under section 138 of the Negotiable Instruments Act, 1881, in respect of the consideration thereof. Hence, the accused-petitioner may kindly be discharged for the ends of justice.
That the impugned cheques were received by the Complainant as blank and when a cheque is drawn by any person in favour of the payee, the amount is set by the drawer of the cheque but in this particular case several blank cheques were taken by the Complainant as blank without setting any amount. The Complainant after a long gap of receipt of the cheque filling up the various columns in their own way presented the same to create more undue pressure upon the accused. So, the very act of the Complainant is nothing but to harass the accused-petitioner and a blatant abuse of the process of the court. So, the accusation of the complainant does not come under the purview of section 138 of the Negotiable Instruments Act,1881 and the accused-petitioner is needed to be discharged under section 265C of the Code of Criminal Procedure, 1898 from the instant case for the ends of justice. The same view has been taken by the Hon'ble Supreme Court in several cases. For ready references, quotation is provided below- Dr Shyamal Baidya Vs Islami Bank, 66 DLR (2014) HCD 553
“Whenever a cheque is drawn by a person in order to make payment of any amount, the amount must be given in it by the drawer of the cheque. Since the amount was not given by the drawer of the cheque having no intention for making any payment, such a cheque cannot be considered as a cheque to serve the purpose of section 138 of the NI Act. So, the conviction and sentence of the appellant under section 138 of the NI Act for the dishonoring of the so-called cheque in question cannot be considered as legal and fair.”
That the Bangladesh Bank issued a circular prohibiting from taking any blank cheque as security vide FICSD Circular No. 1 dated 12.02.2017 and such a direction by the Bangladesh Bank is mandatory in nature and binding. However, the complainant violating the said direction of the Bangladesh Bank very illegally took blank cheque from the accused-petitioner and with malafide intention made material alteration to the instant cheque which renders the impugned cheque illegal and the complainant is not a holder in due course of the said cheque as emphasized under section 9 of the Negotiable Instruments Act, 1881. Hence, the accused-petitioner may kindly be discharged for the ends of justice.
That the complainant alleged that the alleged loans was availed by the petitioner, however, the complainant did not mentioned any specific sanction letter(s) against which impugned cheques were issued, moreover, no such sanction was disbursed with consent of the accused-petitioner. Hence, the accused-petitioner may kindly be discharged from the instant case for securing the ends of justice.
That the cheques were taken as blank in the year 2018 by the complainant but the same was presented before the Bank after a long gap of 1 (one) year. In order to fulfill the requirements of law the complainant with malafide intention illegally put imaginary date 25.03.2019 and 25.04.2021 on the cheques to fulfil the requirements of law as provided under section 138 of the Negotiable Instruments Act. So, after 1 (one) year it cannot be presented for its encashment and in that view of the matter the presentation of cheques after 1 (one) year is illegal and utter violation of the relevant laws of the land and abuse of the process of the court. Hence, the accused-petitioner may kindly be discharged from the instant case for securing the ends of justice.
That it is stated that the complainant is regulated under the Financial Institutions Act, 1993 and according to section 2 of the Artha Rin Adalat Ain, 2003, the complainant is a financial institution. According to section 5 of the Artha Rin Adalat Ain, 2003, Artha Rin Adalat has exclusive jurisdiction over all suits concerning recovery of loan by a financial institution and as a financial institution the complainant’s legal remedy lies before any competent Artha Rin Adalat not before any criminal court and the complainant has already filed 2 (two ) Artha Rin Suits, i.e. on 10.07.2019 the complainant filed Artha Rin Suit No. 528 of 2019 now pending before the Artha Rin Adalat No.2, Dhaka and Artha Rin Suit No. 462 of 2019 now pending before the Artha Rin Adalat No.2, Dhaka, for recovery of the aforesaid loans. However, despite filing the aforesaid Artha Rin suits for recovery of the alleged loans, the complainant with malafide intention illegally and arbitrarily filed this instant criminal case against the accused-petitioner by illegally filling up blank cheques with regard to the aforesaid loans in order to harass and victimize the accused-petitioner and thus the accused-petitioner may kindly be discharged for securing the ends of justice.
That it is evident from the sanction letters dated 25.10.2018 that as security against the aforesaid alleged loans, the complainant took several immovable property as mortgage and the complainant has already filed the aforesaid Artha Rin Suit for recovery of loan Despite filing Artha Rin Suits and having sufficient security, filing the instant case absolutely unnecessary and nothing but an abuse of the process of the court as under section 5 of the Artha Rin Adalat Ain, 2003, Artha Rin Adalat has exclusive jurisdiction over all suits concerning recovery of loan by a financial institution and the said special Act was passed subsequently to the Negotiable Instruments Act, 1881. Hence, the accused-petitioner may kindly be discharged for securing the ends of justice.
That in view of the Artha Rin Adalat Ain, 2003 and the Negotiable Instruments Act, 1881, a financial institution should take first available recourse under the Artha Rin Adalat Ain, even by selling the property mortgaged against any legally recoverable loan (if any) before filing Artha Rin suit for realization of remaining amount. Without exhausting the principal recourse a financial institution should not be allowed to used a co-lateral security prior to using the principal security of mortgaged properties within the frame work of Artha Rin Adalat Ain, because the mortgage have more contractual value for realization of loans prior to making a alleged defaulter criminally liable by using black cheques. In the instant case the complainant presented the blank cheques and filed the case without exhausting the appropriate forum for realization of legally recoverable loan amount (if any) as per the provisions of the Artha Rin Adalat Ain. Hence, the accused-petitioner may kindly be discharged for securing the ends of justice.
That the complainant being a juristic person, cannot file any complaint, sign the same, swear affidavit and give evidence. It has to rely on some natural person for performing the above mentioned activities by giving him the authority to represent the company. Such person has to be authorized by the company in the Articles of Association or by a separate resolution to depose on behalf of the company It was also held in M/S Canara Workshop Limited Vs. Shri Mantesh reported in II(2014) BC 367(Kar.) that-
“The question of authority to institute a suit or other proceeding on behalf of a company is therefore not a technical matter as it often affects the policy and finances of the company and unless the power to institute a proceeding is specifically conferred on a particular director, he would have no authority to institute a suit or other proceeding on behalf of the company and such power can be conferred by the Board of Directors only by passing a resolution in that regard.”
That the ‘Letter of Authorization’ is not proper and tenable in the eye of law as it shown nothing about source of the power of the executant of the said letter of authority or any board resolution or Articles of Association or Memorandum of Association empowering the said executant to execute the said letter of authority. That it is very much evident from the letter of authority submitted by the complainant that an officer of the complainant has been given the power to represent the complainant in this particular case. But, there is nothing in the record to show that he was actually empowered as the complainant did not file any paper or document in support of his legal authority given by any board resolution or Articles of Association or Memorandum of Association of the complainant. So, the very filing of the case by the said officer and the taking of cognizance on the basis of such a petition of complaint is not legal and thus the instant case cannot be continued any longer and thus the accused-petitioner may kindly be discharged for securing the ends of justice.
Wherefore, it is most humbly prayed that Your Honour would graciously be pleased to discharge the accused-petitioner under section 265C of the Code of Criminal Procedure, 1898 from the instant case for ends of justice and/or pass such other order/orders for granting further relief/reliefs as Your Honor deems fit and proper.
And for which act of kindness the accused/petitioner as in duty bound shall ever pray.
আপনার কাঙ্খিত নজীরটি খুঁজে পাননি! এ বিষয়ে আরও নজীর পেতে নিচের বাটনে ক্লিক করুন।
