The Negotiable instruments Act (XXVI of 1881)
section 3(b), 46, 63
The appellant Bank is a trustee and the relationship existing between him and the appellant Bank is that of a debtor and creditor; the appellant Bank, being a schedule Bank and owned by the Government is a "person" within the meaning of article 102 of the Constitution and was duly bound to pay the proceeds of the FDR to the respondent No.1 but it having failed the respondent No.1, being denied of the right to property guaranteed under Article 42 of the Constitution, was entitled to invoke writ jurisdiction seeking necessary relief for a direction upon the appellant Bank. Agrani Bank vs Ansarul Hoque (Md. Tajazzul IslamJ) IADC 383
Negotiable Instruments Act [XXVI of 1881]
Sections 5 and 6
The impugned cheque was given without filling up all space, Le. (a) name of the payee, (b) date of Issue, (c) amount of money and (d) signature of the drawer. This nature of blank cheque is not a cheque in the eye of law according to section 6 of the Negotiable Instruments Act. The definition of section 5 of the Negotiable Instruments Act the cheque actually a bill of exchange which will be written by the drawer himself, without issuing the same as per provision of section 6 read with section 5 of the Negotiable Instruments Act, the definition of section 5 of the Negotiable Instruments Act the cheque actually a bill of exchange which will be written by the drawer himself, without issuing the same as per provision of section 6 read with section 5 of the Negotiable Instruments Act. [2023] 29 ALR (HCD) 68
Section 6, 138, 141- We are of the view that the operation of section 138 of the Act, 1881 cannot be obstructed or, in any way, circumvented by the mere fact of filing of a suit by the drawer of the dishonoured cheque in civil Court whatever allegations may be in the plaint about the same and the relief prayed for therein, because such a device shall totally make the section itself nugatory. However, if a holder or the payee gets hold of a dishonoured cheque by fraudulent means or forgery, the drawer of the cheque shall have the liberty to take such defence during the trial. Consequently we find no reason to interfere with the impugned judgment and order passed by the High Court Division. This petition is dismissed. ...Arif-Uz-Zaman(Md.) =VS= The State, [8 LM (AD) 614]
Sections 7 and 138(1)-From a bare reading of section 138(1) of the Act, it is mani- festly clear that the cheque drawn by a person on any account must be maintained by him. For the purpose of section 138(1) of the Act, the account has to be maintained by the drawer of the cheque. The expression 'drawer' is defined in section 7 of the Act. As per that section, the maker of a bill of exchange or cheque is called the drawer. Shahnaj Begum Munni vs State 63 DLR 279.
Section 48 From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act. Salah- uddin vs State 51 DLR 299.
Sections 43 and 138-Trial Court has ample power to allow the accused to take any defence as provided for under sections 4, 6, 8, 9, 43, 58 and 118 of the Act. The complaint petition should contain the circumstances of obtaining such cheque and reasons for issuing cheque by the issuer so that the accused can take a meaningful defence stand at the trial under all circumstances. However, even in the absence of any such statement in the complaint there is no embargo under the Act, to take any defence by the accused person in the light of sections 4, 6, 8, 9, 43, 58 and 118 of the Act and that the trial court shall give the accused persons adequate opportunity to take any such defence during the course of trial. Shafiqul Islam vs Bangladesh, 68 DLR 283
Section 79, 80, 117
It also appears that considering the situation which arose in view of the Order 37 providing for filling special kind of suit and special procedure for an adjudication and also considering many instances in which application could not be filed within time, in many states of India, by amendments, provisions have been made either allowing applications under section 5 of the Limitation Act or giving power to the Court to condone the delay. National Bank Ltd vs M.S. Khan (Md. Tafazzul Islam J)(Civil) 2ADC 742
(ক্রস-চেক / অ্যাকাউন্ট পেয়ি চেকও একটি চেক যার সম্পর্কে হস্তান্তরযোগ্য দলিল আইনের ধারা ১৩৮ (১) এ বর্ণিত আছে। আই চেকের হস্তান্তরযোগ্যতা বিলুপ্তির মাধ্যমে চেকের সাধারণ চরিত্রকে পরিবর্তন করা হয় মাত্র। কিন্তু এই চেক ১৩ ধারায় যেসকল হস্তান্তরযোগ্য দলিল এর কথা বলা হয়েছে সেই দলিলের মর্যাদা হারায় না। প্রকৃতপক্ষে, ১২৩ ক (১) (ক) ধারাটি একই ধারার (খ) ক্লজ দিয়ে পড়তে হবে। ধারা ১২৩ক (১) এর (খ) ধারার বিধানে বর্ণিত আছে "অ্যাকাউন্ট পেয়ি" চেকে উল্লিখিত পরিমাণ কীভাবে এনক্যাশ করতে হবে। এই বিধানের পাশাপাশি আমাদেরকে উল্লিখিত আইনের ১২৬ ধারার বিধানও অনুসরণ করতে হবে। যেহেতু complaint petition এ বর্ণিত account payee চেকটি হস্তান্তরযোগ্য দলিল এর মর্যাদা হারায়নি সেহেতু উক্ত চেক হস্তান্তরযোগ্য দলিল আইনের ১৩৮(১) ধারায় বর্ণত "যেকোন চেক" এর আওতায় পড়ে কারণ চেক অর্থ account payee চেক কেও অন্তর্ভুক্ত করে)
MOHAMMAD ALI VS. THE STATE AND ANOTHER, 3 LNJ (2014) 853
অপরদিকে ধারা ১১৮ (ছ) সহজ সরল পাঠে এটি কাঁচের মত স্পস্ট যে, ভিন্ন কিছু প্রমাণিত না হওয়া পর্যন্ত বিনিময় যোগ্য দলিলের ধারককে যথাবিহীত ধারক মর্মে গণ্য করতে হবে। তবে শর্তে বলা হয়েছে যে ক্ষেত্রে দলিলটি উহার বৈধ স্বত্বাধিকারীর কিংবা আইনগত হেফাজতকারীর নিকট হতে, অপরাধমূলে বা প্রতারণামূলে (Fraudulently) অর্জিত হবে, অথবা উহা প্রস্তুতকারী বা সম্মতিদাতার নিকট হতে অপরাধমূলে বা প্রতারণামূলে বা বেআইনী পণের বিনিময়ে অর্জিত হবে, সেই ক্ষেত্রে দলিলের ধারক যে একজন যথাবিহীত ধারক তা তাকেই প্রমাণ করতে হবে।
অর্থাৎ বিনিময় যোগ্য দলিলের ধারক তথা চেকের ধারক একজন যথাবিহীত ধারক কথাটি শর্তহীন (Unconditional) নয়। অপর কথায় বলা যায় যে, যথাবিহীত ধারক (holder in due course) কথাটি সম্পূর্ণরূপে শর্তযুক্ত।
ধারা ১১৮ এর মোতাবেক চেক এর বৈধ স্বত্বাধিকারী কিংবা আইনত হেফাজতকারীর নিকট হতে প্রতারণামূলকভাবে (fraudulently) অভিযোগকারী পেয়েছে মর্মে আসামী দাবী করলে অভিযোগকারীকেই প্রমাণ করতে হবে যে তিনি প্রতারণামূলকভাবে এটি প্রাপ্ত হন নাই বরং যথানিয়মে ধারক।
অর্থাৎ যখনই কোন চেক সংশ্লিষ্টতায় আসামী পক্ষ দাবী করবে যে এটি জাল কিংবা প্রতারণামূলক ভাবে অভিযোগকারী কর্তৃক অর্জিত হয়েছে সেক্ষেত্রে অভিযোগকারীকেই প্রমাণ করতে হবে আলোচ্য চেকটি আসামী তাকে ভয়ভীতি কিংবা অন্যের প্ররোচনা ব্যতিরেকে প্রদান করেছে।
ধারা ১১৮(ছ) এর শর্ত মোতাবেক বিনিময়যোগ্য দলিলের তথা চেকের যথাবিহীত ধারক প্রমাণের দায়িত্ব পরিবর্তিত হয়ে যিনি ধারক তার উপর ন্যাস্ত হয়।
ধারা ১১৮(ছ) মোতাবেক সাধারণভাবে যখন কোন বিনিময়যোগ্য দলিল বা চেক আদালতে উপস্থাপন করা হবে তখন এর ধারককে যথাবিহীত ধারক গণ্য করা হবে। কিন্তু চেকটি প্রতারণামূলকভাবে বা বেআইনীভাবে বিনিময়ে অর্জিত হলে ধারা ১১৮(ছ) এর শর্ত মোতাবেক এর ধারককে আর যথানিয়মে ধারক বলে গণ্য করা যাবে না।
17. অপর কথায় বিনিময়যোগ্য দলিল তথা চেকটি এর বৈধ স্বত্বাধিকারী কিংবা আইনগত হেফাজতকারীর নিকট হতে অপরাধমূলকভাবে বা প্রতারণামূলকভাবে অজির্ত হয়েছে মর্মে অভিযোগ করা হলে অথবা এর প্রস্তুতকারী বা সম্মতিদাতার নিকট হতে অপরাধমূলকভাবে বা প্রতারণামূলকভাবে বা বেআইনী পণ্যের বিনিময়ে অর্জিত হয়েছে মর্মে অভিযোগ করা হলে, বিনিময়যোগ্য দলিলের তথা চেকের ধারককেই প্রমাণ করতে হবে যে তিনি উহার যথাবিহীত ধারক। [31 BLT (HCD) 27]
21. উদ্ভূত পরিস্থিতিতে The Negotiable Instruments Act, 1881 এর ধারা ১৩৮ মোতাবেক চেক প্রত্যাখ্যানের মামলার আমলী আদালত ও বিচারিক আদালতের বিচারকদের কতিপয় নির্দেশ প্রদান জরুরী বিধায় নির্দেশ প্রদান করা যাচ্ছে যে,
(১) চেক প্রত্যাখ্যানের মামলায় দাখিলকৃত আরজী তথা অভিযোগনামা তথা নালিশী দরখাস্তে চেকটি আসামী কর্তৃক অভিযোগকারীকে কি ধরনের পণ বা প্রতিদানের বিনিময়ে প্রদান করেছিল তৎমর্মে অভিযোগনামায় সুস্পষ্ট ও সুনির্দিষ্ট দাবীর বিস্তারিত বর্ণনা না থাকলে আদালত উক্ত অভিযোগ গ্রহণ না করে সরাসরি প্রত্যাখ্যান করবেন।
(3) অত্র মোকদ্দমার গর্ভে বর্ণিত The Negotiable Instruments Act, 1881 এর ধারা ১১৮(ক) এবং ধারা ১১৮ (ছ) এর শর্তের বিচার বিশ্লেষণ সামনে রেখে প্রত্যেকটি চে প্রত্যাখ্যানের মামলা সর্বোচ্চ সতর্কতার সাথে নিষ্পত্তি করবেন।
(৩) প্রথমেই আদালত ধরে নিবেন চেকটি পণ বা প্রতিদানের বিনিময়ে প্রদত্ত।
(৪) যদি আসামী দাবী করেন যে, তিনি চেকটি সম্পাদন করেছেন কিন্তু চেক প্রদানের বিনিময়ে কোন পণ বা প্রতিদান প্রাপ্ত হন নাই, সেক্ষেত্রে আসামীকে সাক্ষ্য প্রমাণ দিয়ে প্রমাণ করতে হবে যে, তিনি চেক প্রদানের বিনিময়ে কোন পণ বা প্রতিদান প্রাপ্ত হন নাই। যদি আসামী প্রমাণ করতে সক্ষম হন। যে, তিনি তর্কিত চেক এর বিনিময়ে কোন পণ বা প্রতিদান প্রাপ্ত হন নাই সেক্ষেত্রে উক্ত চেকের মামলাটি সাক্ষ্য প্রদাণের ভিত্তিতে কারণ উল্লেখে আদালত খারিজ করবেন।
(৫) যদি আসামী দাবী করেন যে, চেকটি তিনি সম্পাদন করেছেন সঠিক কিন্তু চেকটি তিনি পণ বা প্রতিদানের বিনিময়ে প্রদান করেন নাই বরং চেকটি জামানত স্বরূপ প্রদান করেছেন সেক্ষেত্রেও আসামীকে প্রমাণ করতে হবে যে, তিনি কোন পণ বা প্রতিদান এর বিনিময়ে তর্কিত চেকটি প্রদান করেন নাই। যদি আসামী তা প্রমাণ করতে সক্ষম হন সেক্ষেত্রে আদালত উক্ত চেকের মামলাটি খারিজ করবেন।
(৬) যেক্ষেত্রে আসামী অভিযোগ করবেন চেকটি তিনি আদৌ সম্পাদন করেন নাই অর্থাৎ চেকটি জাল জালিয়াতিমূলকভাবে সৃষ্ট সেক্ষেত্রে প্রমাণের দায়িত্ব পরিবর্তিত হয়ে চেক গ্রহীতাকেই প্রমাণ করতে হবে যে চেকটি জাল কিংবা জালিয়াতিমূলকভাবে তিনি প্রাপ্ত হন নাই কিংবা চেকটি সৃজিত নয় কিংবা চেকটি প্রতারণামূলকভাবে তিনি প্রাপ্ত হন নাই। [31 BLT (HCD) 28]
Criminal - Quashing of proceedings - Cheque bounce - Section 138 of Negotiable Instruments Act, 1881 - Petition filed for quashing of proceedings in case under Section 138 of Act - Whether Petitioner made out case for quashing of proceedings - Held, it did not appear that prosecution story was preposterous - Proceedings could not be quashed on ground of preposterousness - Payee was required to satisfy Court conditions at time of taking cognizance - Complainant placed cheque within six months of its issuance of cheque and same was presented for encashment - Requirement of Section 138 of Act has been satisfied - Initiation of proceedings on basis of second notice was not legal and taking cognizance of complaint by Magistrate was also not legal - Continuation of proceedings was an abuse of process of
Court - Proceedings quashed - Rule made absolute. [8], [14], [16], [20] 70 DLR (2018) 303
SM Anwar Hossain v. Md Shafiul Alam reported in 51 DLR (AD) 218 wherein their Lordships held:
"Subsequent allegation will not save limitation because the requirement under the law is that the complaint against non-payment of money has to be filed within one month of the date on which the cause of action arises under clause (c) of the Proviso to section 138 of the Act." 70 DLR (2018) 303
Initiation of the impugned proceedings on the basis of the second notice being not legal, taking cognizance of the complaint by the Magistrate is also not legal and, thus, we hold that: the continuation of the proceedings is an abuse of the process of the Court. 70 DLR (2018) 303
Section 118-Whenever a person will be holder in due course he must become holder in due course for consideration and section 118 of the Act has given more privileges to the holder in due course which provides that until the contrary is proved it is to be presumed that every negotiable instrument was made or drawn for consideration, that is, the law itself prescribed a privilege in favour of the holder of a cheque that for consideration the cheque was drawn in his favour but this presumption is a rebutable presumption. Shariful Alam (Babu) (Md) vs State, 67 DLR 182
Section 118-Ends of justice would be served if the accused petitioner is given a chance to place his defence case before the trial Court for examination which the law has allowed him to rebut a presumption in favour of the complainant as laid down in section 118 of the Act. Shariful Alam (Babu) (Md) vs State, 67 DLR 182
Section 118(a)-The presumption is that the negotiable instrument was drawn for consideration but, of course, that presumption is a rebuttable presumption. But this presumption can only be rebutted by adducing evidence to the contrary at the trial. Parvin Akhter vs Bangladesh, 70 DLR 413
Sections 123A & 138- Crossed cheque The legislative mandate as used in clause (a) of sub-section (2) of section 123A of the Act, 1881 that when a cheque is crossed "account payee" shall cease to be negotiable means it cannot be negotiated or encashed with any other person except the person in whose favour the same was issued. To make it clearer, a crossed cheque "account payee" must be enchased through the account of the holder in whose favour it was issued. So, by no means, a crossed cheque "account payee" loses its character as a negotiable one within the meaning of section 138 of the Act, 1881.
Section 138
Therefore, while we accept the submissions of the learned advocates that there is in fact an anomaly being created by such administrative orders of the Sessions Judges in their respective Sessions Divisions, this anomaly may easily be cured a common approach to be adopted by all the Sessions Judges in the said Sessions Divisions. Thus, our considered view is that all such cases under Section 138 of the NI Act should be sent to the Joint Sessions Judges for trial, and the concerned Sessions Judges of the respective Divisions should adopt this similar approach in distributing those cases.
Regard being had to the above, we do not find any reason to interfere into the proceedings concerned in the aforesaid cases. We are of the view that the practical anomaly that has been surfaced because of the inconsistent administrative orders by different Sessions Judges in different Sessions Divisions may be cured by the common approach as stated above. Thus, the Rules in these writ petitions should be discharged with such direction. [73 DLR 176]
Section 135 and 141-Quashing- Initiation-Since there is no legal bar against the initiation and continuation of the proceedings and, as such, the proceedings do not amount to an abuse of the process of the Court. Raj Kumar Khetan vs Mercantile Bank Ltd, 64 DLR 272
Negotiable Instruments Act [XXVI of 1881]
Section 138
Since it is a special law and it should be construed strictly, cognizance court should apply its legal acumenship at the initial stage. By complying all these the lower courts should take cognizance of offence under section 138 of the Negotiable Instruments Act. The mi court can take another measure, that is complainant of section 138 cases, complainant must file an affidavit of facts regarding the Impugned cheque had been drawn by the sccined himself not by the complainant. Rensons are that If the cheque is drawn by the complainant he face criminal prosecation for alle allegation of making false affidavit. If this measure are takes the case under section 138 of the Negotiable Instruments Act will be considerably reduced in the initial stage.
Negotiable Instruments Act [XXVI of 1881)
Section 138
Section 138 of the Negotiable Instruments Act is special law. This special law shall override general provision of law and if anything mentioned in the special law the general law will not be applicable. [2023] 29 ALR (HCD) 68
Section 138 and 140
If the complainant claims before the Magistrate that no reply to the demand notice was made by the accused and, later on, at the stage of framing charge the accused can satisfy the trial Court that in spite of her/his reply detailing her/his non-involvement in the conduct of the business of the company upon appending document in its support, the complainant had not produced it before the Magistrate or despite of its production before the Court, the cognizance-taking Magistrate failed to consider it, in that scenario, the trial Court would be in a position to discharge her/him from the charge or, if s/he approaches this Court directly, this Court may quash the proceedings so for as it relates to the aforesaid accused who had clarified her/his position by replying to the demand/legal notice by denying any involvement in the conduct of the business of the company upon enclosing the authentic document/papers in substantiating the aforesaid claim. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230.
ধারা ১৩৮ এবং ১৪০
যদি অভিযোগকারী ম্যাজিস্ট্রেটের সামনে দাবি করেন যে, চাহিদাপত্রের জবাব অভিযুক্ত ব্যক্তি প্রদান করেননি এবং পরবর্তীতে অভিযোগ গঠনের পর্যায়ে অভিযুক্ত ব্যক্তি বিচারিক আদালতকে সন্তুষ্ট করতে পারেন যে, তিনি তার জবাবে কোম্পানির ব্যবসায় পরিচালনার সাথে তার/তার অনসম্পৃক্ততার বিস্তারিত বর্ণনা দিয়ে সমর্থনকারী নথি সংযুক্ত করেছেন, কিন্তু অভিযোগকারী তা ম্যাজিস্ট্রেটের সামনে উপস্থাপন করেননি বা আদালতের সামনে তা উপস্থাপন করা সত্ত্বেও, বিচারগ্রহণকারী ম্যাজিস্ট্রেট তা বিবেচনা করতে ব্যর্থ হন, সে ক্ষেত্রে বিচারিক আদালত তাকে অভিযোগ থেকে অব্যাহতি প্রদানের ক্ষমতায় থাকবেন অথবা যদি তিনি সরাসরি এই আদালতে আবেদন করেন, তবে এই আদালত উক্ত অভিযুক্ত ব্যক্তির বিরুদ্ধে কার্যক্রম বাতিল করতে পারেন, যিনি আইনগত/চাহিদাপত্রের জবাব দিয়ে কোম্পানির ব্যবসায় পরিচালনার সাথে তার কোনো সম্পৃক্ততা অস্বীকার করেছেন এবং তার দাবি প্রমাণ করার জন্য যথাযথ নথি/প্রমাণ সংযুক্ত করেছেন। ইঞ্জিনিয়ার সিরাজুল ইসলাম এবং অন্যজন বনাম রাষ্ট্র এবং অন্যজন (ক্রিমিনাল) ২০১৯ ALR (HCD) Online 230.
Section 138 and 140
It is important to bear in mind that in the cases under Sections 138 and 140 of NI Act, the accused is entitled to seek discharge relying upon the contents of a reply to the demand/legal notice, for, the same is a prosecution material and, accordingly, the accused is also competent to approach this Court on the basis of the said material in addition to any other prosecution material, subject to the condition that the contents of the reply together with its annexed document are either conceded by the complainant or, if disputed by the complainant, it appears to the trial Court/this Court that the same does not require any formal proof through producing evidence before the trial Court. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230.
ধারা ১৩৮ এবং ১৪০
এটি মনে রাখা গুরুত্বপূর্ণ যে, এনআই আইনের ধারা ১৩৮ এবং ১৪০ এর অধীনে মামলাগুলিতে, অভিযুক্ত ব্যক্তি চাহিদাপত্র/আইনি নোটিশের জবাবের বিষয়বস্তুর উপর নির্ভর করে অব্যাহতি দাবি করার অধিকার রাখেন, কারণ এটি একটি প্রসিকিউশন উপাদান। সুতরাং, অভিযুক্ত ব্যক্তি এই উপাদানের ভিত্তিতে এবং অন্যান্য প্রসিকিউশন উপাদানের ভিত্তিতে এই আদালতে আবেদন করতে সক্ষম, তবে শর্ত থাকে যে জবাবের বিষয়বস্তু এবং এর সাথে সংযুক্ত নথি হয় অভিযোগকারীর দ্বারা স্বীকৃত বা, যদি অভিযোগকারী তা অস্বীকার করেন, তবে বিচারিক আদালত/এই আদালতের কাছে এটি প্রমাণের জন্য আনুষ্ঠানিক প্রমাণাদির প্রয়োজন হয় না বলে প্রতীয়মান হয়। ইঞ্জিনিয়ার সিরাজুল ইসলাম এবং অন্যজন বনাম রাষ্ট্র এবং অন্যজন (ক্রিমিনাল) ২০১৯ ALR (HCD) Online 230.
Negotiable Instruments Act (xXVI of 1881)
Section 138
Issuing and signing of the cheques would be proved at the trial. Whether he managed the affairs of the company or not is a disputed question of facts. The High Court Division was not justified in passing the impugned judgment considering the documents submitted before it. The High Court Division was based upon disputed question of facts and defence mate- rials, those materials were not submitted at the trial Court, rather, directly submitted before the High Court Division for consideration in the proceedings under section 561A of the Code. The complainant has no occasion to know about the transfer of shares because it is the internal affairs of the accused and his company which ought not have scrutinized by the High Court Division while exercising its inherent jurisdiction. On the basis of such defence material quashing of the proceedings of the 3(three) cases out of 5(five) is serious error of law.. (27 & 28) [74 DLR (AD) (2022) 40]
In the case of Islami Bank Bangladesh Ltd. vs Ferdous Khan @ Alamgir and another reported in 22 BLC (AD) 209, it has been held that:
"The person, who issued the cheque, whether on his own behalf or on behalf of a The company of which he is in charge or for which he is responsible cannot escape liability under the Act. In such circumstances, To the proceeding against the accused cannot be quashed. The matter will be decided upon trial whether or not the omission of the as accused is fatal to the company as prosecution of the Managing Director of the company, who issued the cheques on behalf of the company". [74 DLR (AD) (2022) 40]
Dishonouring of cheque
Dishonouring of the cheque itself does not constitute the offence of cheating. As re- gards the argument that the accused petitioner issued a cheque knowing full well that he had no money in the account and that conduct amounts to cheating it is held that dishonour- ing of the cheque itself does not constitute the offence of cheating. On this point reliance was placed on the principle laid down in the case of Md. Asaduzzaman Vs. Salamatullah, reported in 19BLD (1999) (HCD)461
Md Motaleb Hossain. Vs. The State, 20BLD (HCD)573
Dishonouring of cheque
Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of cheating unless there is evidence to show that after issuing it, the accused has done something more to defraud the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank account at the moment it will no amount to cheating if he has intention to deposit the money before the cheque is presented for encashment. Mohiuddin Md. Abdul Kader Vs. The State and another, 20BLD (HCD)499
Section 138
Whether there is any justification to pass stay order under section 344 of the Code of Criminal Procedure in a proceeding under section 138 of the Negotiable Instruments Act till disposal of the subsequent Civil Suit instituted for money where the cheque in question is also an issue.
Pendency of civil suit is not a reasonable ground to stay criminal proceedings until the decision of the civil suit.
The High Court Division relying upon the Case of Zafar Ahmed -vs- Mir Iftekharuddin and another reported in 61 DLR 732, their lordships observed that: "The proceeding under section 138 of the Negotiable Instruments Act appears to be quite independent in nature with a very limited scope for adjudication which is not at all related to the issues involved in the Civil Suit. Moreover, at the fag end of trial of the criminal case, such an application praying for stay order was not at all justified and entertainable. The object of section 344 of the Code of Criminal Procedure is not commensurate with the prayer for stay in the present case. Policy of law is that the criminal case should be disposed of with the least possible delay. Even mere pendency of earlier Civil Suit, connected with the matter, is no ground to stay the criminal proceedings initiated subsequently." The High Court Division is also respectfully agreement with the same view taken above and held that: "Pendency of civil suit is not a reasonable ground to stay criminal proceedings until the decision of the civil suit." Court below committed no illegality. The High Court Division finds no merits in these rules. In the result, these Rules are discharged. Md. Aminul Islam and another Vs. The state and another (Criminal) 21 ALR (HCD) 198-199
Section 138-According to section 138A of the Negotiable Instruments Act, the convict-petitioner has no other option but to prefer an appeal against the said judgment and order by depositing 50% of the amount of the dishonored cheque. If he has failed to prefer an appeal within the stipulated time as laid down in the law, he ought to have preferred an appeal by depositing 50% of the cheque amount with an application for condonation of delay wherein he has ample scope to show the reason of delay. But the convict- petitioner, ignoring the provision of law for preferring the appeal, moved appli- cation under sections 435/439 read with section 426(2A) of the Code of Criminal Procedure which is not sustainable in law.
Considering the pandemic situation of the covid-19, the High Court Division ordered that the convict-petitioner be enlarged on ad-interim bail in connection with Sessions Case No. 2008 of 2016 arising out of C.R Case No. 1288 of 2015, under section 138 of the Negotiable Instrument Act, 1881 for a period of 02 [two] months from the date of his release from jail, on furnishing bail bond subject to the satisfaction of the Chief Judicial Magistrate, Narayangonj with a direction to pay 50% of the cheque amount, which is the pre-requisite condition to prefer an ap- peal against an order of conviction under the said Act. If the convict-petitioner fails to prefer an appeal by depositing 50% of the cheque amount within the aforesaid 02 [two] months after his release from jail, then the order of ad-interim bail shall stand cancelled and the convict-petitioner shall have to surrender before the trial court to serve out the sentence. Thus the application is disposed of. Md. Matin -Vs. The State. (Criminal) 19 ALR (HCD) 255-256
Sections 138(1) and 138A
Since at that relevant time the petitioner was not the Managing Director, he had nothing to do with the affairs of the company. Consequently, no ingredients of section 138 of the Act attracts the accused petitioner to be tried in a criminal prosecution.
The High Court Division held that the accused petitioner transferred his share in the company on 23.08.2009, said fact is not disputed by the opposite party. In the given context, it is apparent that the petitioner has transferred his share in the company much before the cheques were issued and dishonoured. With the transfer of the share of the accused petitioner the relationship between the accused petitioner and the company ceased to exist on and from 23.08.2009. Since the said transfer of share has been approved by the company and duly notified to the Registrar of Joint Stock Companies before the date of issuance of the cheques in question, the accused petitioner had no authority to sign any cheque on behalf of the company at the relevant time as he was nobody to the company. These facts leave no manner of doubt to find that on the date the offence was committed by the company and since at that relevant time the petitioner was not the Managing Director, he had nothing to do with the affairs of the company. Consequently, no ingredients of section 138 of the Act attracts the accused petitioner to be tried in a criminal prosecution. Md. Shahidul Islam Vs. The State and another (Criminal) 23 ALR (HCD) 141
Section 138
The circular of the Bangladesh Bank has a direction upon the scheduled bank not to issue any Non-MICR cheque after 31.10.2010 but admittedly the instant cheques were issued much earlier and those were given as the security for the borrowed amount which were returned unpaid due to insufficient fund. Therefore, the cheques cannot be considered as illegal or inoperative when those cheques were used for the purpose of getting back the borrowed money from the petitioner.
The High Court Division opined that the petitioner submits that the petitioner issued 2 Non-MICR cheques on 23.12.2012 but the Bangladesh Bank has issued a circular on 31.10.2010 under the heading of "আঞ্চলিক নিকাশঘর সমূহের অন্তর্গত ব্যাংক হতে MICR যুক্ত ইন্সট্রুমেন্ট ইস্যু করা প্রসঙ্গে। therefore, the present 2 cheques became illegal or inoperative after the said circular. In this regard, the High Court Division has carefully considered the said circular referred by the learned Advocate and the High Court Division is of the view that the purpose of issuing above circular by the Bangladesh Bank is to phase out the Non- MICR cheques by the replacing MICR cheques. MICR cheques are the cheques known as Magnetic Ink Character Recognition. The High Court Division consider that the Bangladesh Bank intended to improve the standard of the cheques from Non-MICR to MICR by the scheduled bank. In the instant case, admittedly the petitioner issued Non-MICR cheques in the year of 2010 and those cheques were used in the year of 2013. In the High Court Division opinion, cheques which were issued prior to the circular dated 31.10.2010 would remained valid until the cheques are issued or exhausted i.e. the pages cheque books were finally used. The High Court Division also consider that the circular of the Bangladesh Bank has a direction upon the scheduled bank not to issue any Non-MICR cheque after 31.10.2010 but admittedly the instant cheques were issued much earlier and those were given as the security for the borrowed amount which were returned unpaid due to insufficient fund. Therefore, the cheques. mentioned above cannot be considered as illegal or inoperative when those cheques were used for the purpose of getting back the borrowed money from the petitioner. In view of the above discussions, the High Court Division does not find any illegality to continue the above two Sessions Cases against the accused- petitioner, therefore, the High Court Division is not inclined to interfere upon the proceeding of the Sessions Case No. 1282 of 2014 and Sessions Case No. 3466 of 2013, now pending in the Court of the learned Metropolitan Sessions Judge, Chattagram. Accordingly, the High Court Division does not find merit in these two Rules. In the result, both the Rules issued in the Miscellaneous Case No. 22733 of 2014 and Miscellaneous Case No. 9453 of 2014 are discharged. Md. Didarul Alam -Vs. The State and another (Criminal) 23 ALR (HCD) 27
Sections 138
As per provisions of section 138 of the Negotiable Instruments Act, prima-facie case against the petitioner had been made out. Since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceeding were not liable to be quashed.
The Appellate Division observed that it is not disputed that the petitioner issued cheques. The objects of issuance of those cheques were to pay the loan amount. Definitely, the petitioner issued those che- ques in favour of the complainant to recover the outstanding by producing those cheques in the Bank for encashment. Accordingly in order to realize the loan, the complainant produced the cheques in the Bank for encashment which were bounced by the Bank. In such situation, the complainant issued legal notice giving the petitioner an opportunity to pay the de- faulted amount but the petitioner failed to pay the same within the stipulated period. Thus, as per provisions of section 138 of the Negotiable Instruments Act, prima- facie case against the petitioner had been made out. The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceeding were not liable to be quashed. The Appellate Division does not find any illegality in the judgment and order of the High Court Division which calls any interference by the Appellate Division. Accordingly, all the petitions are dismissed. Ehetasamul Haque -Vs. State and another (Criminal) 20 ALR (AD) 156-157
Section 138-Whether the Negotiable Instrument Act, 1881 is demand notice was defective as because a part payment was made. 2) Whether the part payment of cheque is enough to defect the entire cause of action?
The High Court Division held that once the cheque is dishonored, the offence is committed and any payment subsequent there to will not absolve the accused of liability of criminal offence. It is seen that petitioner and her partner jointly issued cheque and part payment was made, more so, the complaint made in writing for payment of the cheque amount by issuing notice to the accused and her partner those are factual aspect and taking into consideration those facts. Besides, the complaint shows that the cheque in question was issued by the Joint signature of the accused and her partner. It's involved serious disputed question facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of extra-ordinary jurisdiction under section 561A of the Code. Thus, the proceeding of the case is not abuse of the process of the court and therefore, the same is not liable to be quashed. The Rule having no merit is liable to be discharged. In the result, the rule is discharged. Asma Begum -Vs. The State and another (Criminal) 18 ALR (HCD) 200-203
Section 138-Whether the proceedings under section 138 of the Act, can be continued when a Artha Rin suit is pending against the accused-petitioner on a loan transaction [double jeopardy theory] and whether a blank cheque as security by filling up with a date and amount to bank's liking can be used for encashment of the same.
The High Court Division held that the sub-section (3) of section 138 of the Act, 1881 has clearly provided that notwithstanding in sub-section (1) and (2), thereof, the holder of the cheques shall retain his right to establish his claim through civil court if whole or any part of the value of the cheques remain unrealized. So there is no bar to proceed with the criminal proceeding against a person, who has taken loan from the cheque holder's Bank, if a suit for realization of loan money is pending with the Artha Rin Adalat. Once a cheque is issued and if dishonored, then a distinct offence appears to have been committed by the maker of the dishonored cheque under section 138 of the Act, 1881. Because it is a separate criminal offence apparently committed by the drawer as he has failed to make payment of the disho- nored cheque's amount even after knowing-fully about the refusal of the cheque amount by the concerned bank. There is nothing to do with the recovery of the loan according to sub-section (1) of section 138 of the Act, 1881. The question whether a blank cheque deposited as security by filling up with a date and amount to bank's liking can be presented for encashment of the same, is purely a disputed question of fact. The accused- petitioner can raise this point at the time of trial by adducing evidence. In the above discussions, facts and circumstances of the case the High Court Division finds no merit in the rules issued by the High Court Division. Accordingly, these rules are hereby discharged. Md. Golam Mowla-Vs.- The State and another (Criminal) 19 ALR (HCD) 162-165
Sections 138 and 141(1)(C)
Whether the trial as held by the court of Additional Metropolitan Session Judge would be without jurisdiction and void, the scheme of the Code, relating to the trial of a case.
The High Court Division held that the intention of the legislature as been shown from section 141(1)(C) of the N.I. Act is that no Court other than Court of Session would try an offence punishable under sec- tion 138 of the N.I. Act. But from the discussion the High Court Division has reached a definite conclusion that "Court of Session" includes not only Session Judge but also Additional or Assistant Sessions Judge. If the case under section 138 of the N.I. Act has been made over to any Court of Additional/ Assistant Sessions Judge for trial and the trial of the said case is held by either of them would not be held without jurisdiction, void and abinitio would not necessarily render the findings reached on such a trial completely illegal or void. Regard being had to the above law, facts and circumstances, the High Court Division finds no merit in this rule to quash the proceeding. In the result, this Rule is discharged. Mohammad Moazzem Hossain -Vs. The state and another (Criminal) 20 ALR (HCD) 110-113
Section 118-The documents in question, which the defence seeks to be produced and given in evidence by the prosecution, are confidential and it is for the prosecution to decide whether it would volunteer to produce the documents in the Court.
The High Court Division has observed that the documents in question, which the defence seeks to be produced and given in evidence by the prosecution, are confidential and it is for the prosecution to decide whether it would volunteer to produce the documents in the Court. There- fore, the High Court Division hold that the trial Court rightly rejected the accused-peti- tioner's application albeit not on point of law, nevertheless laws discussed hereinbefore are of no assistance to the accused-petitioner. Hence, the High Court Division does not find merit in the Rule. In the result, the Rule is discharged. Alamgir Kabir Vs. The State and another (Criminal) 15 ALR (HCD) 159-162
Sections 43 and 138(a)
Applying the 'preponderance of probability' test, it is highly unlikely that in the prevalent circumstances the complainant lent taka 2 crore in cash in early 2016 to the accused for business purpose. The defence has succeeded in establishing its case that the cheques were not given to the complainant to repay the loan, but as part payment under the bainanama. Again, the bainanama could not come into effect. Hence, this Court takes the view that the defecne has successfully rebutted the presumption of consideration as laid down in Section 118(a). The prosecution, in its turn, failed to prove passing of consideration against the cheques. Therefore, the accused-appellant has no legal obligation to pay the value of the dishonoured cheques to the complainant as per provisions of Section 43.
The High Court Division held that the trial Court rightly found that the complainant could not prove that he had lent money to the accused for business purpose, but wrongly observed that the cheques were drawn for consideration in respect of payment of purchase price under the bainanama. The trial Court further observed that the cheques ought to have been issued in favour of the complainant's son. The observation of the trial Court in respect of passing of consideration cannot be sustained for the reasons discussed above. Hence, both the appeals succeed. The Court below is directed to return the deposit to the appellant which he made in the trial Court before filing the appeals forthwith. Engr. Mohammad Aminul Islam -Vs.- The State and another (Criminal) 23 ALR (HCD) 31
Section 138
The lendering bank has every right to file a case under section 138 of the Negotiable Instruments Act, 1881 by using collateral cheque issued in favour of the lender bank. The High Court Division held that there are some admitted factual aspects in these 2 Rules are that the Premier Bank Limited, Khatungonj Branch, Chattagram issued some loan facilities to the present accused- petitioner and those facilities were availed by the present accused-petitioner. However, at certain point of time the accused- petitioner became a defaulter. The opposite party No. 2-bank took steps to file an Artha Rin Case being Artha Rin Case No. 223 of 2014 in order to realize the borrowed money including interest accrued therefrom. At the same time the bank took initiative to use the collateral security of cheque in order to recover the money, as such, 2 C. R. Cases have been filed. The High Court Division has already decide in earlier cases that the lendering bank has every right to file a case under section 138 of the Negotiable Instruments Act, 1881 by using collateral cheque issued in favour of the lender bank, however, the bank is under an obligation to take initiative first for recovery of borrowed money by exhausting the contractual obligation by way of mortgaged deed as per provision of the Artha Rin Adalat Ain, 2003. In the instant case the bank has already exhausted that forum by filing the Artha Rin Case No. 223 of 2014 in an appropriate Court. Therefore, the High Court Division is of the opinion that the proceeding pending in the Sessions Court against the present petitioner under section 138 of Negotiable Instruments Act, 1881 cannot be considered as illegal because the settled principle is that Artha Rin Case is not a bar to the case under the provision of Act, 1881. Md. Didarul Alam - Vs. The State and another (Criminal) 23 ALR (HCD) 27
Section 138 and 140(1)
The High Court Division held that that the cheques were issued by the company as drawer. The accused petitioner was an authorized signatory of the cheques. From plain reading of the complaint itself High Court Division finds that no averments regarding status of the accused petitioner has been made in the complaint connecting him with the business of the company. In the absence of any averment being made about the signatory of the cheques connecting him with the business of the company the requirement of section 140(1) of the Act cannot be said to be satisfied and as such, the Court cannot take cognizance of the offence under section 138 of the Act. Md. Shahidul Islam -Vs.- The State and another (Criminal) 23 ALR (HCD) 141
Section 138
Document are beyond suspicion or doubt and not disputed by the opposite party.
The High Court Division considered view that if before the issuance of cheques the accused had transferred his entire shares and ceased to be the Managing Director of the company then he cannot be held liable for the offence of section 138, where cognizance taken, the trial is yet to take place and the materials relied upon by the accused and the complainant which are in the nature of public document are beyond suspicion or doubt and not disputed by the opposite party. In the circumstances, this can be looked into by this Court in exercise of its jurisdiction under section 561A of the Code. Md. Shahidul Islam - Vs. The State and another (Criminal) 23 ALR (HCD) 141
ধারা ১৩৮
একই ঘটনা থেকে উদ্ভুত দেওয়ানী এবং ফৌজদারী উভয় মামলা একসাথে চলতে কোন বাধা নাই। অর্থাৎ একই অভিযোগে যুক্তপৎভাবে দেওয়ানী মোকদ্দমা এবং ফৌজদারি মোকদ্দমা চলতে কোন আইনগত বাধা নাই।
হাইকোর্ট বিভাগ এই মর্মে সিদ্ধান্ত গ্রহণ করেন যে, বর্তমান মামলায় আসামী-দরখাস্তকারী পক্ষে একমাত্র যুক্তি হল যেহেতু অত্র আসামী দরখাস্তকারী কর্তৃক তর্কিত চেকটির বিষয়ে দেওয়ানী আদালতে মামলা করেছেন যা এখনও বিচারাধীন (প্রথম আপিল ১১৫ (২০১৫) সেহেতু উক্ত দেওয়ানী মামলা চলাকালীন বর্তমান ফৌজদারী মামলা নং এস টি ৭৪৯/২০১৫ এর কার্যক্রম চলতে পারে না। আপিল বিভাগ কর্তৃক প্রদত্ত উপরোক্ত সিদ্ধান্ত সমূহ পর্যালোচনায় এটা কাঁচের মত সুস্পষ্ট যে, একই ঘটনা থেকে উদ্ভুত দেওয়ানী এবং ফৌজদারী উভয় মামলা একসাথে চলতে কোন বাধা নাই। অর্থাৎ একই অভিযোগে যুক্তপৎভাবে দেওয়ানী মোকদ্দমা এবং ফৌজদারি মোকদ্দমা চলতে কোন আইনগত বাধা নাই। সার্বিক বিচার বিশ্লেষণ পূর্বক তথা নথিপত্র পর্যালোচনা এবং মহামান্য আপিল বিভাগের রায়ের আলোকে অত্র রুলটি খারিজযোগ্য। অতএব, আদেশ হয় যে, রুলটি বিনা খরচায় খারিজ করা হল। মাষ্টার আব্দুল কাদের -বনাম- রাষ্ট্র এবং অপর একজন (Criminal) 23 ALR (HCD) 62
Section 138
The complainant-leave-petitioner failed to prove the case as made out in the complaint-petition against accused- respondent No. 1 beyond all reasonable doubt and as such, the impugned judgment and order of conviction and sentence called for interference.
The Appellate Division held that admittedly, accused-respondent No. 1 was given in marriage to the son of the complainant-leave-petitioner and as soon as respondent No. 1 divorced her husband, the complaint-petition was filed against respondent No. 1. Having gone through the record, the Appellate Division is fully satisfied that the complaint-petition was filed in order to harass respondent No. 1 for divorcing the son of the complainant-leave- petitioner. In the light of the findings made before, the Appellate Division does not find any substance in this criminal petition. Accordingly, this criminal petition is dis- missed. Sheikh Wahiduzzaman Dipu. -Vs.- Tanima Afrin Kumkum and another. (Criminal) 21 ALR (AD) 44-46
Section 138 read with
Artha Rin Adalat Ain [VIII of 2003]
Section 5
Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the loan availed by the loanee has alleged by the accused or any other cheque issued by the drawer for encashment currently. When the legislature has not made any difference between a post-dated cheque issued as security for the repayment of the loan availed by the loanee, the petitioner, being the loanee has issued a cheque for encashment currently, the High Court Division does not see any scope of making any such difference. According to the provision of Artha Rin Adalat Ain, 2003, Artha Rin suit relates to realization of loan or debt by a financial institution while dishonour of cheque relates to an offence by the loanee against the lender such dishonour has been created a distinct offence and made punishable offence under Section 138 of the Negotiable Instruments Act, 1881, which is both penal and procedural law. The offence is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to thrice the amount of the cheque or both. Sub-section 2 of section 138 provides for payment to the holder of the cheque any amount upto the face value of the cheque as far as is covered by the fine realized from the accused. To appreciate the grounds taken by the accused-petitioner that the petitioner took loan from the complaint-Bank and issued a cheque against repayment of the loan as security and as such the present proceeding against the petitioner under Section 138 and 141 are liable to be quashed. On plain reading of sub-section (1) of section 138 of the Negotiable Instruments Act, 1881 shows that an of- fence under the section shall be deemed to have been committed the moment a cheque is drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid on any of the grounds mentioned therein. Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the loan availed by the loanee has alleged by the accused or any other cheque issued by the drawer for encashment currently. When the legislature has not made any difference between a post-dated cheque issued as security for the repayment of the loan availed by the loanee, the petitioner, being the loanee has issued a cheque for encashment currently, the High Court Division does not see any scope of making any such difference. In this respect reliance may be placed on the decision reported in 17 BLC (AD) 177. It is pertinent to note that in the decision reported in 24 BLC (AD)-139 their lordship held-that "question of fact as to the issuance of the cheque as security or advance or post dated can only be decided upon recoding evidence." Which is not liable to be quashed having regard to the facts and circumstances, the decisions cited above, the High Court Division finds no merit in the rule. In the result, the Rule is discharged. Md. Haroon Vs. Bank Aisa Limited and another (Criminal) 21 ALR (HCD) 10-13
Section 138
Whether a Criminal Appeal abate on the death of the appellant.
The High Court Division held that the accused-appellant died on 29.01.2016 as such the Criminal Appeal abates on the death of the accused-appellant. An Appeal against a sentence of fine shall not abate by reason of death of the accused-appellant because it is not a matter which affect his person but on which affect his estate. Hence part of the appeal which relates to the sentence of imprisonment shall abate on the death of the accused-appellant but other part relating to the sentence of fine shall not abate. The balance dues of the cheque amount are recoverable and shall be realized from the estate of the deceased ac- cused-appellant. M.A. Motin -Vs. The State and another. (Criminal) 21 ALR (HCD) 89- 91
Section 138
There is no legal bar of filing a single case against the drawer of the cheques if the notice is served within the period of limitation intimating the fact of dishonour of the cheques with a request to pay the amount involved in those cheques within a period of thirty days.
The Appellate Division has already settled that there is no legal bar of filing a single case against the drawer of the cheques if the notice is served within the period of limitation intimating the fact of dishonour of the cheques with a request to pay the amount involved in those cheques within a period of thirty days. As observed above, the dishonour of a cheque does not itself constitute an offence under section 138. If the drawer of such cheque fails to make payment of the amount of money to the payee within thirty days of receipt of the notice, the cause of action for constituting the offence will arise, and if a complaint is filed within one month of the date on which the cause of action arises, the court shall take cognizance of the offence. So, the cause of action will arise if the drawer fails to make payment as above to the payee. Now, if the same drawer fails to make payment of the amount of money covered by the cheque(s) within the stipulated time, does it constitute no cause of action? It does. If it does constitute a cause of action, there will be no legal bar to file a case for prosecuting the drawer for the said cause of action. Here the cause of action is not distinct but the same. Similar fact was involved in Bilakchand Gyanchand Co. V. A. Chinnaswami, (1999) 5 SCC 693. In that case, the accused did not even challenge the propriety of filing of one case against the dishonour of six cheques. Six cheques were issued by the Shakti Spinners Ltd. and were signed by its Managing Director. The cheques were dishonoured with an endorsement that 'sufficient funds were not available and exceed arrangement'. After service of notice the drawee filed a complaint and consequently, process was issued against the Managing Director. On an application moved for quashing the proceedings, the High Court quashed the proceedings on the ground that no notice was served upon the company. The Supreme Court set aside the judgment on the ground that the High Court fell in error in quashing the proceedings, inasmuch as, there is no 'infirmity in the notice issued under section 138 addressed to A. Chinnaswami, who was a signatory of the cheques'. Therefore, the Appellate Division finds no merit in these appeals. The Appellate Division would, however, like to observe that the complainant(s)/drawee(s) of the cheques may, if so advised, arraign by adding the Companies in the category of accused if they feel that for getting effective relief in the cases the presence of the companies is necessary in the cases. The appeals and the petitions are dismissed without, however, any order as to costs. Mohammad Eusof Babu and others Vs. Johan Provanjon Chowdhury (Criminal) 23 ALR (AD) 58
Section 138
Whether if a company incorporated under the Companies Act commits an offence punishable under section 138 of the Negotiable Instruments Act, 1881 is excluded from prosecution, can a director, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case. Mohammad Eusof Babu and others -Vs.- Johan Provanjon Chowdhury (Criminal) 23 ALR (AD) 58
Sections 138 and 141(c)
The anomaly that has been surfaced as regards forum of appeal and revision may easily be cured by a common administrative approach by the Sessions Judges concerned in all districts in Ban- gladesh through allocation of the cases under Section 138 of the NI Act for trial to the Joint Sessions Judges. Therefore, according to it, merely on the ground of administrative anomaly and inconsistent approach of different Sessions Judges in different districts in distribution of the cases of this nature, the proceedings should not be quashed or declared to be without lawful authority.
All such cases under Section 138 of the NI Act should be sent to the Joint Sessions Judges for trial, and the concerned Sessions Judges of the respective Divisions should adopt this similar approach in distributing those cases.
The High Court Division does not find any reason to interfere into the proceedings concerned in the aforesaid cases. The High Court Division is of the view that the practical anomaly that has been surfaced because of the inconsistent administrative orders by different Sessions Judges in different Sessions Divisions may be cured by the common approach as stated above. Thus, the Rules in these writ petitions. should be discharged with such direction. Accordingly, the Rules are discharged. All Sessions Judges in all Sessions Divisions in Bangladesh are directed to allocate the cases under Section 138 of the Negotiable Instrument Act, 1881 for trial to the Courts of Joint Sessions Judges only. The cases which have already been transferred or distributed to the Courts of Additional Sessions Judges, or Sessions Judges, in any Sessions Division should immediately be retransferred/reallocated to the Joint Ses- sions Judges of the said Division and the concerned Joint Sessions Judges shall continue the trial of such cases from the stage reached by the said Additional Sessions Judges or Sessions Judges. Registrar General of the Supreme Court of Bangladesh and the Registrar of the High Court Division of the Supreme Court of Bangladesh are directed to issue necessary circulars in this regard asking the concerned Sessions Judges for allocation of cases under Section 138 of the Negotiable Instruments Act for trial to the Joint Sessions Judges of divisions concerned within 15 (fifteen) days from the date of receipt of such circular. Let a copy of this Judgment be sent to the Registrar General of the Supreme Court of Bangladesh as well as the Registrar of the High Court Division of the Supreme Court of Bangladesh for taking necessary steps in this regard. A A M Ziaur Rahman -Vs- Bangladesh and others (Spl. Original) 20 ALR (HCD) 102-107
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 561A
Under section 138 of the Negotiable Instruments Act an offence is committed, if a cheque is dishonoured and if payment is not made within 30 days after receipt of a legal notice, which is well present in this case. Since the cheque issued by the accused-petitioner was dishonoured for insufficient of fund and the petitioner failed to pay the amount of the dishonoured cheque in time, offence under section 138 of the Negotiable Instruments Act has been dis- closed against the accused petitioner.
On the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial.
On scrutiny of the record, it appears to the High Court Division that admittedly, the accused-petitioner issued a cheque of Taka 45,00,000/- (forty five Lac) in favour of the complainant opposite party No. 2 on 02.01.2012 and the said cheque was placed for encashment in bank on 18.01.2012 but the same was returned unpaid as there was no sufficient fund to honour the cheque and thereafter, the complainant opposite party No. 2 issued a legal notice asking to pay the cheque's money within 30 days but the accused petitioner did not turn to pay the cheque's amount. Under section 138 of the Negotiable Instruments Act an offence is committed, if a cheque is dishonoured and if payment is not made within 30 days after receipt of a legal notice, which is well present in this case. Since the cheque issued by the accused-petitioner was disho- noured for insufficient of fund and the petitioner failed to pay the amount of the dishonoured cheque in time, offence under section 138 of the Negotiable Instruments Act has been disclosed against the accused petitioner. The plea as taken in this application and supplementary affidavit dated 01.04.209 appears to be defence plea or materials, based on bundle of facts, which can be adjudicated at the trial. Be that as it may, the proposition of law is by now fairly established that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial. Taking into consideration of overall facts, circumstances and materials on record, the High Court Division is of the view that the petition of complaint undoubtedly discloses that the accused petitioner is liable for the offence under section 138 of the Negotiable Instrument Act. In framing the charge under section 138 of the Negotiable Instrument Act against the accused peti- tioner, the learned Joint Metropolitan Sessions Judge, 6th Court, Dhaka did not commit any illegality whatsoever. Therefore, the High Court Division does not any merit in this Rule. In the result, the Rule is discharged. Air Commodore (Retd.) Sayed Gilani -Vs. The State and another. (Criminal) 16 ALR (HCD)123-125
Section 138 Section 44 provides for a pro tanto reduction of the amount where there is a partial absence or partial failure of consideration. To ensure a proportionate reduction in liability against the instrument, partial absence or partial failure of consideration must be capable of being ascertained or calculated with a fair degree of certainty.
The High Court Division held that sub- section (2) of Section 138 provides, "Where any fine is realised under sub- section (1), any amount up to the face value of the cheque as far as is covered by the fine realised shall be paid to the holder". Thus, the criminal proceeding under Section 138 serves two purposes: firstly, to punish the offender and secondly, to recover the value of the cheque. The object of adding sub-section (2) to Section 138 is to alleviate the grievance of the com- plainant. There can be no dispute insofar as the sentence of imprisonment is concerned that it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of facts and circumstances of each case. It is not only the rights of the offenders which are required to be looked into at the time of the imposition of sentence, but also of the victims of the crime and society at large, also by considering the object sought to be achieved by the particular legislation. Considering facts and circumstances of the case in hand and the object of the law, the High Court Division is of the view that the sentence of imprisonment would be a harsh sentence having no penal objective to be achieved. Hence, the sentence of imprisonment is set aside. Mahmudul Hasan Vs. The State and another (Criminal) 19 ALR (HCD) 315-318
Section 138-It is well settled that the enumeration of specific matter "without prejudice to the generality" of a particular provision does not restrict the general application of that provision to the matters enumerated because the words "without prejudice" have the effect of preserving the full effect of the general provisions and also because the Rule of ejusdeme generis has no universe application. Those words clearly indicate that the provision of section 138 did not make any embargo in the application of other provisions of the Act.
Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque.
The Appellate Division observed that the High Court Division being last court of facts upon elaborate consideration of the evidence both the oral and documentary has come to the conclusion that the complainant failed to take any step to sell the property of the respondent, rather the respondent and his brother and sister sold the said property to the U.S.A. Embassy and the complainant did not help the respondent in any way in that regard. It is relevant here to quote the evidence of the complainant which he adduced before the trial court as P.W.1 which are as follows:
"আমি অত্র মামলার বাদী। আসামী ইমরান রশীদের সাথে ১৩/৩/১২ খ্রিঃ তারিখে রেজিঃকৃত Memo বা Agreement যার নম্বর ১৮৯৮/১২। আসামী ডকে উপস্থিত নাই। উক্ত Agreement এর শর্তানুযারী আগামী ১/৭/১৩ খ্রিঃ তারিখে ১টা cheque দেয় ১ কোটি টাকা। যার নম্বর ০৫৫৯৫৭০ ইহা আমার নামীয় ব্যাংক Account এ বিগত ১৮/৭/১৩ খ্রিঃ তারিখে জমা দেই। কিন্তু stop payment এর কারনে Dishonour হয়। ২৫/৭/১৩ খ্রিঃ তারিখে ইহা পুনরায় জমা দিলে অনুরুপভাবে Dishonour হয়। উক্ত বিষয়ে আমি ১৩/৮/১৩ খ্রিঃ তারিখে আসামীর প্রতি Legal Notice প্রদান করি। কিন্তু আসামী পাওনা পরিশোধ না করার কারণে অত্র মামলা দায়ের করি। অতঃপর ১০/৯/১৩ খ্রিঃ অত্র মামলা দায়ের করি। এই নালিশ (Ext-1) আমার স্বাক্ষর (Ext-1-1) এই সেই cheque (Ext-2), এই সেই দুইটা Dishonour slips (Ext-3 series), এই সেই Legal Notice with postal receipts (Ext 4 series), এবং এই আমার Memo of Agreement (Ext-5) মুল কপি দায়রা ৩০৭৯/১৩ মামলায় দাখিল আছে।"
Nowhere in his examination-in-chief the complainant claimed that in terms of agreement (Ext-5) he had brought the purchaser to sell the respondent's property and, accordingly, the same was sold. In his cross examination, the complainant has admitted the fact saying, "আমার memo. of understanding এর ১নং শর্তে উল্লেখ আছে ৯০ কার্যদিবসের মধ্যে" positive out coming নিয়ে আসতে হবে। ২(ধ) শর্তে উল্লেখ আছে বাজার মূল্যে ক্রেতা আনিতে পারিলে আমি (বাদী) কমিশন পাব। (emphasis supplied) He further said that, "কথিত শর্তের কারণে আসামী গং $5.25 M dollar এ ঐ plot বিক্রির প্রস্তাব দেয় মার্কিন দূতাবাসের নিকট।" He further said that, "০৩/০৭/১৩ খ্রিঃ তারিখে sale deed (deed of transfer) সম্পাদন ও রেজিস্ট্রি হয়। তেজগাঁও Registry office Registration nq| H deed এ আমি উপস্থিত ছিলাম না।" That is accused respondent offered the proposal to sell their property to the American Embassy and even, at the time of execution and regis- tration of sale deed, the appellant was not present in the Sub-Registrar's office. Ext.5 would create a liability of the respondent to pay commission under the agreement only when the appellant secured net market price of the res respondent's property by sale what did not happen in this case. In his cross examination the complainant has said, "২(ধ) শর্তে উল্লেখ আছে বাজার মূল্যে ক্রেতা আনিতে পারিলে আমি (বাদী) কমিশন পাব।" There is no such averment, in the petition of complaint or in the evidence that the complainant has stated that he had brought any purchaser who offered market price of the property. From the evidence quoted above it appears that the condition under which the cheques were issued was not ful- filled by the complainant appellant. Thus, the respondent instructed the bank not to encash the impugned cheques. Accordingly, the bank returned the cheques with endorsement, "payment stopped by the drawer". Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions. Consequently, the question of committing an offence by the accused respondent punishable under section 138 of the Act does not arise. Thus, the Appellate Division is of the view that these appeals do not deserve any consideration. Accordingly, all the appeals are dismissed. Md. Abul Kaher -Vs.- Emran Rashid and another (Criminal) 19 ALR (AD) 56-64
Sections 138 (3) read with Code of Criminal Procedure [V of 1898]
Section 561A-Whether the institution of two types of cases in relation to the same amount of money should be allowed to continue.
The High Court Division found that the issues raised in an Artha Rin Suit are confined to the realization of money along with the interest thereon. The said suit does not involve any criminal liability. On the other hand, a case under section 138 of the N.I. Act involves a strict criminal liability which means that, the offence thereunder, May not involve a means rea and institution of an Artha Rin Suit does not exempt the offender from the criminal of liability being the penalty of a maximum imprisonment of 1(one) year or specified quantum of fine or both. In view of the above, the High Court Division hold that the institution of the Artha Rin Suit is not valid a ground for quashment of or interference with the proceeding in the Sessions Case under section 138 of the N.I. Act. However the High Court Division like to observe that if any money is realized in the process of the Artha Rin Suit or otherwise the trial Court may consider this aspect subject to production of proper evidence. In the result, the Rule issued in this case is discharged. Md. Nasir Uddin Umar @ Nasir Uddin Mohammad Omar - Vs.- Chowdhury Jahangir Jahural Ambia Al-Baki and another (Criminal) 18 ALR (HCD) 395-397
Section 138-Dispute between the parties in N.I Act proceeding may be resolved out of Court by the parties on compromise and the same should be allowed by the Court at any stage of the proceeding even at appellate and revisional stage.
The High Court Division held that the Negotiable Instruments Act, 1881 (shortly N.I. Act) is silent about compromise of offences under the Act. But the Act does not make any provision therein prohibiting such compromise. Be that as it may, since N.I. Act proceeding arises out of monetary transaction and the proceeding is a quasi civil and quasi criminal in nature and maximum sentence under the law is one year inasmuch as that our criminal administration encourages compromise at any stage of the proceeding as well as at appellate and revisional stage, the High Court Division is of the view that the dis- pute between the parties in N.I Act proceeding may be resolved out of Court by the parties on compromise and the same should be allowed by the Court at any stage of the proceeding even at appellate and revisional stage. Since this matter is pending by way of appeal before this Court, the High Court Division has no hesitation in allowing the compromise and as a result, this composition shall have the effect of acquittal of the accused. Accordingly, the application for compromise is allowed and the appeal is disposed of in terms of the compromise petition. Respondent No. 2 will be at liberty to withdraw 50% of the cheque amount from the court below. Md. Jony Chowdhury -Vs. The State and another (Criminal) 18 ALR (HCD) 251-252
Sections 138 and 141 read with Code of Criminal Procedure [V of 1898]
Section 561 A-An offence under section 138(1) of the Act, 1881 shall be deemed to have been committed when any cheque(s) drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid for the reasons stated therein arid such unpaid/dishonoured cheque(s) gives rise to initial cause of action to the payee, or, as the case may be, to the holder in due course of the cheque(s) for filing a petition of complaint as provided in clause (a) of section 141 of the Act, 1881 subject to fulfillment of the conditions as detailed in clauses (a) (b) and (c) of the proviso to sub section (1) of section 138 of the Act, 1981.
The High Court Division held that the complainant categorically narrated the manner of crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed charge under Section 138 of the Act against the accused. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise. With this regard reliance has been placed in the case of Abdur Rahim alias A.N.M. Abdur Rahman Vs. Enamul Haq and another 43 DLR AD)-173. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Section 138 of the Act. Cognizance has been taken under the said section. The High Court Division has meticulously examined the allegations made by the complainant and we find that the offence punishable under Section 138 of the Act has been clearly disclosed in the instant case against the accused. The High Court Division has gone through the grounds taken in the petition of Misc. case and the High Court Division finds that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The pleas of the petitioner are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts the grounds taken in the petition of Misc. case are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuchas the grounds advanced before us are not correct or legal exposition of law. Therefore the High Court Division hold that there are sufficient grounds for proceeding against the accused for going for trial under Section 138 of the Act. To that end in view the High Court Division is at one with the learned Judge of the Court below regarding framing of charge against the accused. In view of the above the High Court Division failed to discover any merit in this Rule. Thus the Rule having no merit fails. Moreover, the impugned proceedings in its entirety is well founded in the facts and circumstances of the case. So the grounds advanced by the learned Counsel for the accused petitioners are not the correct exposition of law. On the contrary the submissions advanced by the learned Counsels for the opposite parties prevail and appear to have a good deal of force. In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above the High Court Division is of the view that the impugned proceedings suffers from no legal infirmities which calls for по interference by the High Court Division. In view of foregoing narrative the Rule is discharged. Md. Abdul Kadir, Proprietor of M/S. Sonargaon Enterprise, 245. Rangdhanu Reside-ntial Area, Chowkid- ekhi, Sadar, Sylhet. Vs. The State (Criminal) 18 ALR (HCD) 241-248
Section 138 read with
Code of Criminal Procedure [V of 1898]
Sections 200 and 561A-No bar or illegality in filing the case after bouncing the cheque for the 2nd time on service of legal notice afresh. The petition of complaint shows that the complainant presented the cheque for the last time, while the accused-petitioner assured him that it would be honored. The petition of complaint was filed complying with all d the formalities as were required by the law.
The High Court Division held that the order sheet of the trial Court that PW1 was examined on 10.07.2014, while the accused was absent. Its next date had been fixed to 31.08.2014 for hearing argument. On that day the accused appeared with a prayer for bail. The bail was granted, PW1 was re- called and cross examined in part and the next date had been fixed for further cross- examination and examination of the accused under section 342 of the Code. But it appears from subsequent orders passed by the Court that the accused petitioner took adjournments in various pretexts and the approached this Court and obtained this Rule. The petitioner took dilatory tactics in disposing the case. The case is still pending for further cross-examination and for examining the accused under section 342 of the Code. Our Apex Court disapproved quashing the proceedings at this stage of the case. In view of the above position of fact at law, the High Court Division finds no substance in the submission of Mr. Islam. The Rule thus bears no substance. Consequently, the Rule is discharged. Sahadat Hossain Chowdhury -Vs.- Aziz Uddin Chowdhury and another (Criminal) 18 ALR (HCD) 75-77
Sections 138 and 140 read with Code of Criminal Procedure [V of 1898]
Section 561A-The petition of complaint was filed offer more than 30 days, whether it is violation of section 141(b) of the Negotiable Instrument Act
"Court of Session" includes not only Session Judge but also Additional or Assistant Sessions Judge.
The High Court Division held that if the case under section 138 of the N.L. Act has been made over to any Court of Additional / Assistant Sessions Judge for trial and the trial of the said case is held by either of them would not be held without jurisdic- tion, void and abinitio would not necessarily render the findings reached on such a trial completely illegal or void. Moreover the other points to the effect that the case is time barred is a matter of fact which needs to be assessed upon taking evidence during trial. An application under section 561A of the Code of Criminal procedure contains no scope to consider the disputed question of fact. Md. Selim Zaman -Vs. The state and another (Criminal) 18 ALR (HCD) 13-16
Section 138 read with
বিশেষ আদালত (অতিরিক্ত দায়িত্ব) আইন, ২০০৩
Sections 4, 6 and 8
The trial held by Special Judges Court whether corum non-judice. As the Special Judges Courts established at M.P. Hostel in the National Parliament area have been abolished from long ago and as those Special Judges Court created at that time have no existence at all, trial of the case held by any one of such courts is illegal and without jurisdiction. The High Court Division held that the learned Metropolitan Sessions Judge. Dhaka ought not to have noted the said S.R.O. No. 67-Law/2008 long nine years after the proclamation of such S.R.O. He could have normally transfer the record of the case for trial and disposal to any court of Special Sessions Judge in view of the provision laid down in section 8 of the বিশেষ আদালত (অতিরিক্ত দায়িত্ব) আইন, ২০০৩. But for this subtle wrong done by the learned Metropolitan Sessions Judge at the time when he was transferring the case record for trial and disposal, the entire proceedings including the judgment and order of conviction and sentence passed after conclusion of trial can not be made liable to be quashed not because the case record was transferred to and received by a Judge of without jurisdiction as per S.R.O. 67-Law/2008, it is because the Special Judge and Special Sessions Judge, Court No. 8, Dhaka was quite competent to try the case in terms of section 4,6 and 8 of the বিশেষ আদালত (অতিরিক্ত দায়িত্ব) আইন, ২০০৩। Ashraf Hossain Bokaul. -Vs- The State and another (Criminal) 17 ALR (HCD) 127-129
Section 138
The provisions of sub-section (1A) of section 138 of the Act, 1881 which are (1A) The notice required to be served under clause (b) of sub-section (1) shall be served in the following manner-
(a) by delivering it to the person on whom it is to be served; or
(b) by sending it by registered post with acknowledgment due to that person at his usual or last known place of abode or business in Bangladesh; or
(c) by publication in a daily Bangla national newspaper having circulation. a wide
From the above provisions of law, there are three modes to serve a notice upon the accused-opposite party with a demand to repay the money, to make him aware before initiation of a criminal proceeding under the Act, 1881. The above modes of service of notice are not alternative to each other, rather any one of the above modes is enough and exhaustive. Md. Anis -Vs.- Md. Anam Miah and another (Criminal) 17 ALR (HCD) 95-97
Sections 138 and 140 read with Code of Criminal Procedure [V of 1898]
Section 265(Ga)-It is now as well settled law that criminal proceeding can be proceeded independently of the civil suit and there is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both can stand together.
The High Court Division considered in the case of Khondaker Mahtabuddin Ahmed Vs. State reported in 49 DLR (AD)-132 where there Lordship held thus; "There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both can stand together." In light of the aforesaid facts and circumstances of the case and ratio decidendi, the High Court Division does not find merit in this Rule. In the result, the Rule is discharged without any order as to cost. Mr. Nur Alam Mahadi -Vs.- IDLC Finance Limited and another (Criminal) 16 ALR (HCD)162-163
Sections 138 and 140 read with Code of Criminal Procedure [V of 1898]
Section 561A-It is well settled that there is no bar to proceed with the case under section 138 of the Act, 1881, if it is claimed that the alleged cheque is blank and security cheque because it is disputed question of fact and it can only be decided upon recording evidence.
The High Court Division taking the relevant portion of the judgment passed by the Appellate Division which are as follows:
"Another important issue is issuance of a blank cheque without mentioning the date and amount will come within the definition on cheque or not. If the cheque is not drawn for a specified amount, it would not fall within the definition of bill of exchange. Filling up amount portion and debt are material. Any alteration without the consent of the party who issued the cheque rendered the same invalid. However, question of issuance of blank cheque and fraudulent insertion of larger amount than actual liabilities is a question of fact. Insertion of larger amount in blank cheque than actual liability is an ingredient of fraud which can not be approved since fraud goes to the root of the transaction. Where there is an intention to deceive and means of the deceit to obtain an advantage, there is fraud. The High Court Division on an application under section 561A of the Code of Criminal Procedure is not authorized to quash a proceeding adjudi- cating a disputed question of fact. Once issuance of cheque and signature thereon are found to be genuine, the court shall proceed with the proceeding. Question of fraud or fraudulent insertion can only be determined by recording and considering evidence by the trial Court after holding trial. However, if blank cheque is issued towards liability or as security, when the liab-ility is proved, if the cheque is filled up and pres-ented to the bank, the person who had drawn the cheque can not avoid criminal liability.
In view of the aforesaid facts and circumstances, our considered opinion is that the disputed question of fact as to the issuance of the cheque as 'security' of 'ad- vance' or 'postdated' can only be decided upon recording evidence".
On perusal of the impugned order dated 06.6.2016 passed by the learned Joint Metropolitan Sessions Judge 3rd Court, Dhaka in Metro session case No. 475 of 2013 the High Court Division finds that the said order is well reasoned and amply supported by the settle principles of law. In view of discussions made above and the judicial view emerged referred to above, the High Court Division is of the view that the impugned order suffers from no illegality which calls for no interference by The High Court Division. Thus the Rule. having no merit fails. In the result, the Rule is discharged. Md. Moslem Uddin Bulu Vs- The State and another (Criminal) 16 ALR (HCD)218-220
Sections 138 and 141-Whether a proceeding under section 138 of the 'Act, 1881 would lie against the drawer of the unpaid/ dishonoured cheque(s) when it/he obtained the loan by creating equitable mortgage and the complainant company had the option to recover the loan money by selling the mortgaged property even the cheque(s) returned unpaid.
The High Court Division held that an offence under section 138(1) of the Act, 1881 shall be deemed to have been committed when any cheque(s) drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid for the reasons stated therein arid such unpaid/ dishonoured cheque(s) gives rise to initial cause of action to the payee, or, as the case may be, to the holder in due course of the cheque(s) for filing a petition of complaint as provided in clause (a) of section 141 of the Act, 1881 subject to fulfillment of the conditions as detailed in clauses (a) (b) and (c) of the proviso to sub section (1) of section 138 of the Act, 1981 and attain its maturity alter the drawer of such unpaid/dishonoured cheque(s) fails to make the payment of the amount of money of such cheque(s) within the period of thirty days of the receipt of the notice served under clause (b). In this regard, it is also significant to note that sub-section (3) of section 138 of the Act, 1881 has clearly provided that notwithstanding any thing contained in sub-sections (1) (1) and (2) thereof, the holder of the cheque(s) shall retain his right to establish his claim through civil Court if whole or any part of the value of the cheque(s) remains unrealized. Md. Hossain Vs. The State (Criminal) 16 ALR (HCD)242-248
Section 138-On the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial.
The High Court Division held that in the instant case the accused stand indicted for offence punishable under Section 138 of the Act. Cognizance has been taken under the said section. The High Court Division has meticulously examined the allegations made by the complainant and the High Court Division finds that the offence punishable under Section 138 of the Act has been clearly disclosed in the instant case against the accused. The High Court Division has gone through the grounds taken in the petition of Misc. case and the High Court Division finds that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The pleas of the petitioner are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts the grounds taken in the petition of Misc. case are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong. precedent by which the course of justice instead of being advanced readily been stifled inasmuchas the grounds advanced before the High Court Division are not correct or legal exposition of law. Therefore the High Court Division hold that there are sufficient grounds for proceeding against the accused for going for trial under Section 138 of the Act. To that end in view the High Court Division is at one with the learned Judge of the Court below regarding framing of charge against the accused. In view of the above the High Court Division failed to discover any merit in this Rule. Thus the Rule having no merit fails. Md. Hossain -Vs.- The State (Criminal) 16 ALR (HCD)242-248
Sections 138 and 141(1)(b)-Whether the proceeding initiated under section 138 of the Negotiable Instruments Act 1881 against the accused petitioner is barred by section 141(1)(b) of the Negotiable Instruments Act, 1881 as the complainant earlier issued legal notice in the 'Daily Azadi' on 14.07.2011 for dishonour of the cheques on 28.06.2011 but the complainant without taking recourse to the appropriate remedy within the time fixed under section 141(b) of the Negotiable Instruments Act, 1881 again issued legal notice published in the daily 'Jugantor' on 17.11.2011 for dishonour of self same cheques on 02.11.2011 and filed the instant case on 21.11.2011 under section 138 of the Negotiable Instruments Act, 1881 on the basis of second notice published in the daily 'Jugantor' long after the expiry of the period of limitation. The procedural limitation provided in section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand pay- ment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act. It will be entirely up to the bearer of the cheque to proceed in respect of any particular dishonour of the cheque, keeping in mind that each step of the process has to be taken within the period stipulated by the law.
It is the considered view of the Appellate Division that there is no conflict between proviso (c) to section 138(1) and section 141(b). Sections 138 and 140 of the Act are substantive provisions of law giving details of the offence, when the offence is committed and who is liable; section 141 of the Act describes the proce- dure to be followed. The intention of the legislature in enacting section 141(b) is to provide a time limit within which the complaint against the defaulting drawer of the cheque is to be made. This section does not preclude the holder of the cheque from presenting the cheque to the bank again for payment, subject only to the condition that the second and subsequent presentation of the cheque must be within six months from the date on which the cheque was drawn in order to be able to prosecute the drawer of the cheque criminally under section 138 of the Act. Upon subsequent presentation of the cheque for payment, if it is again disho- noured another opportunity will accrue to the beneficiary to take action as provided under section 138(1) of the Act, and again. in accordance with the provisions of section 141, the beneficiary of the cheque will be obliged to make complaint against such subsequent dishonour within a period of one month from the cause of action arising under proviso (c) to section 138 (1) of the Act. The offence is committed each time the cheque is dishonoured on presentation for payment. There is nothing in section 141(b) to suggest that the cause of action cannot arise more than once under clause (c) of the proviso to section 138(1). The procedural limitation provided in section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand payment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act. It will be entirely up to the bearer of the cheque to proceed in respect of any particular dishonour of the cheque, keeping in mind that each step of the process has to be taken within the period stipulated by the law. Hence, the Appellate Division holds that decision in the case of Dr. Md Mofizur Rahman and ors vs Md Bashirullah and another, 55 DLR 630 was incorrect and is accordingly overruled. In view of the above discussion, the opinion of the Appellate Division is that the appeals have no merit and are accordingly dismissed. For the same reasons the criminal petition for leave to appeal is also dismissed. Nizam Uddin Mahmud Hossain Vs. The State and another (Criminal) 16 ALR (AD) 3-11
Section 138 read with
Code of Criminal Procedure [V of 1898]
Section 561A-Whether a commercial bank can file a case under section 138 of the Negotiable Instruments Act (in short, the Act) in respect of dishonour of a post dated cheque taken from a borrower despite taking collateral security from the borrower.
The High Court Division on an application under section 561A of the Code of Criminal Procedure is not authorized to quash a proceeding ad- judicating a disputed question of fact. Once issuance of cheque and signature thereon are found to be genuine, the court shall proceed with the proceeding.
The Appellate Division held that the question of fraud or fraudulent insertion can only be determined by recording and considering evidence by the trial Court after holding trial. However, if blank cheque is issued towards liability or as security, when the liability is proved, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid criminal liability. In view of the aforesaid facts and circumstances the Appellate Division considered opinion is that the disputed question of fact as to the issuance of the cheque as 'security' or 'advance' or 'post dated' can only be de- cided upon recording evidence. Accordingly, the Appellate Division does not find any substances in the appeals and petitions. Thus, all the appeals and petitions are dismissed. Mohammad Alauddin Vs. The State, represented by
the Deputy Commissioner, Chittagong and others: (Criminal) 16 ALR (AD) 113-117
Sections 138 and 140-The complainant issued 3 times legal notice asking to pay the cheque's amount whether the prolongation of the case amounts to an abuse of the process of the Court and the impugned proceeding is liable to be quashed.
The High Court Division held that the accused-petitioner on various pretext again and again requested the complainant to place the cheque before the bank and accordingly the complaint on good faith placed the cheque in bank for 3 times for encashment but the cheque in question was returned unpaid in each time. The case as revealed from the petition of complaint that the complainant issued 3 legal notices time to time lastly on 13.09.2017 as per request of the accused petitioner on good and the cheque in question was bounced all along. In the facts and circumstances of the case and law bearing on the subject, it is difficult to hold that there is any legal bar of the impugned proceeding or the continuation of the impugned proceeding will amount to an abuse of the process of the Court. Md. Abdul Awal -Vs.- The State and another. (Criminal) 15 ALR (HCD) 20-21
Sections 138 and 140 read with Code of Criminal Procedure [V of 1898]
Section 561A-Disputed question of fact to be ascertained at the trial on taking evidence and when evidence is required to settle the dispute, the pro- ceeding cannot be quashed. The proposition of law is well settled that on the basis of defence plea or materials, the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial.
The High Court Division is of the view that the petition of complaint undoubtedly discloses that the accused petitioner is liable for the offence under section 138 of the Negotiable Instrument Act and as such, the question of quashing the proceeding does not arise at all. In framing charge under section 138 of the Negotiable In- strument Act, the learned Additional Metropolitan Sessions Judge, 1st Court, Narayangonj did not commit any illegality whatsoever. Whether a proceeding under section 561A of the Code Criminal Proce- dure is to be quashed depends upon the facts of the case itself. Md. Abdul Awal - Vs. The State and another. (Criminal) 15 ALR (HCD) 20-21
Sections 138 and 140 read with General Clauses Act [X of 1898]
Section 27 read with
Code of Criminal Procedure [V of 1898]
Section 561A-The complainant has admitted that he served legal notice upon the accused on 21.09.2010 which was returned undelivered on 06.10.2010 with a remark that the receiver was not found which is a valid service of notice under section 27 of the General Clauses Act whether publication of further legal notice in the daily 'Purbo Kone' and lodging complaint petition on 15.11.2010 are contrary to the provisions of section 138(1) and 141(b) of the Negotiable Instruments Act.
The High Court Division held that section 138(1) of the Negotiable Instruments Act provides that the cheque has to be presented to the bank within a period of 6 (six) months from the date on which it is drawn or within the period of validity whichever is earlier; the payee or the holder in due course of cheque as the case may be, will make a demand for the payment of the amount by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid and if the drawer of such cheque fails to make the payment to the holder in due course of the cheque within 30 days of the said notice the complainant can lodge complaint petition within one month of the date on which cause of action arose under clause (c) of the Proviso to section 138 of the Negotiable Instrument Act. If the High Court Division takes the statement of the complaint in to that the first legal notice served on 21.09.2010 which was returned undelivered on 06.10.2010 then also the High Court Division finds that the complaint petition lodged on 15.11.2010 by the complainant is very much within the time prescribed by law. Apart from that, it is already settled by apex court that the date of receipt legal notice is a disputed ques- tion of fact to be ascertained at the time of trial and 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 the facts and circumstances of the case and for the reasons stated above, the High Court Division does not find any merit in the rule. Mohammad Shawkot Iqbal Chowdhury -Vs.- Mohammad Abdur Rashid Miazi and State (Criminal) 15 ALR (HCD) 22-25
Sections 138 and 141 read with Code of Criminal Procedure [V of 1898]
Section 561A-Whether the petitioner can initiate present miscellaneous case challenging the conviction and sentence dated 29.04.2015 passed against him by the Sessions Judge, Cox's Bazar in S.T. Case No. 1303 of 2014 arising C.R. Case No. 847 of 2013, convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him 1 year imprisonment and a fine of Tk. 1,60,00,000.00, which was already decided in Writ Petition No. 12580 of 2015 discharging the Rule by Full Bench of High Court Division by judgment dated 07.09.2016.
Whether in the judgment and order passed by the Full Bench of High Court Division in Writ Petition no. 12580 of 2015 made any observation giving scope to the petitioner to file a criminal miscellaneous case under section 561A of the Code of Criminal Procedure, where specific provision was made under Section 138A of the Negotiable Instruments Act to file an appeal against the judgment and order of conviction passed by the sessions judge and in that case the convicted person must deposit 50% of the dishonoured amount before filing the appeal.
The High Court Division held that since the legislature created forum of appeal by depositing 50% of the cheque amount challenging the Judgment and Order of conviction and sentence hence by way of such legislation, legislatures expressly curtailed the avenue to challenge the pro- priety of Judgment and Order of conviction and sentence passed in a case under Section 138 of the Negotiable Instruments Act, 1881 without depositing 50% of the cheque amount and as such this instant Rule is liable to be discharged being not main- tainable. Tofayel Ahmed -Vs.- The State and another (Criminal) 15 ALR (HCD) 81- 89
The High Court Division further held that remedy under Section 561A is not available where there remains alternative remedy prescribed under Section 138A of the Negotiable Instruments Act to file appeal. The convict petitioner had ample opportunity to file appeal by depositing 50% of the amount of money of the dishonoured cheques. Thus the present application under Section 561A is not maintainable and the Rule is liable to be discharged. Tofayel Ahmed -Vs.- The State and another (Criminal) 15 ALR (HCD) 81- 89
The High Court Division further held that the Negotiable Instruments Act is a special law. Section 138 of the Negotiable Instruments Act provided certain pre- condition for bringing prosecution against the drawer of the unpaid cheque. Under Section 138(c) of the Act, 30 day's time is given for payment of the amount due under the cheque from the date of receipt of notice regarding dishonor of cheque issued by the payee. The payee has to wait for 30. days anticipating payment of the amount by the drawer. After expiry of 30 days, if the drawer does not pay the amount, the cause of action starts 31st day onwards. The limitation of file a complaint as prescribed under Section 141(b) of the Act is one month. It is relevant to point out here that the petitioner have knowledge about the filing of the case. Primarily he challenged the judgment of order and sentence dated 29.04.2015 in Writ Petition No. 12580 of 2015 but same was discharged by Full Bench of the High Court Division on 07.09.2016. But without preferring appeal as provided under the special law, the petitioner again filed the present application under Section 561A of the Code of Criminal Procedure on 03.11.2016 without stating any cause and reason in his application under Section 561A of the said Code and not to pay his liability for Tk. 80,00,000/- which was admittedly received by him to sell of immovable property to the complainant- opposite-party no. 2. Section 141, clause (c) of the Negotiable Instruments Act has provided for trial of such case by a senior Court, namely the Court of Sessions. Thereafter, by a subsequent amendment dated 09.02.2006, the earlier Section 138A, regarding filing of appeal against the judgment of the trial Court, has also been replaced and substituted by a new Section 138A of the Negotiable Instruments Act. In the new Section, restriction has been imposed in preferring appeal against any order of sentence under section 138 (1) of the Act unless an amount of not less then 50% of the amount of the dishonoured cheque is deposited before filing the appeal in the court which awarded the sentence, no appeal would be admissible. As such, the intention of the legislature is very much clear that the Negotiable Instruments Act, being a special law, special provision has been inserted to restrain lingering of the disposal of such cases and also to discourage preferring frivolous appeals. This piece of legislation by its nature is a beneficial one and the cheque-defaulter should not be indulged in a manner so that the legislative intent is allowed to be frustrated. Tofayel Ahmed -Vs. The State and another (Criminal) 15 ALR (HCD) 81- 89
Sections 138 and 140 read with Code of Criminal Procedure [V of 1898]
Section 561A-The grievance of the learned Advocate that the complainant served a legal notice giving 15 days time instead on 30 days as per new amended provision of law, which is question of fact or mere omission or irregularity not an illegality and the impugned proceeding cannot be quashed on that count, the complainant is entitled to prove his case on evidence.
On the basis of defence plea or mate- rials, the criminal proceedings should not stifled before trial, when there is a prima-facie case for going to the trial. Whether a proceeding under section 561A of the Code Criminal Procedure is to be quashed depends upon the facts of the case itself. The High Court Division has carefully studied the provisions of section 138 of the the Negotiable Instrument Act to the best of our ability and find the provision with regard to serve notice in the well circulated Bangla National Newspaper is mere directory not mandatory, since there is no legal mandate to stop or dismiss the case, if notice is not served through a daily Bangla National Bangla newspaper having wide circulation. Furthermore, the complainant- opposite party published a legal notice through the daily newspaper named "গণসংহতি" which is a wide circulated daily Bangla National Newspaper or not that is a disputed question of fact to be ascertained at the trial on taking evidence and when evidence is required to settle the dispute, the proceedings cannot be quashed. The grievance of the learned Advocate that the complainant served a legal notice giving 15 days time instead on 30 days as per new amended provision of law, which is question of fact or mere omission or irregularity not an illegality and the impugned proceeding cannot be quashed on that count, the complainant is entitled to prove his case on evidence. The proposi- tion of law is now well settled that on the basis of defence plea or materials, the criminal proceedings should not stifled before trial, when there is a prima-facie case for going to the trial. Whether a proceeding under section 561A of the Code Criminal Procedure is to be quashed de- pends upon the facts of the case itself. Therefore, the High Court Division finds no substance in either of the contentions as raised by the learned Advocate for the accused petitioner. In view of the High Court Division discussions made in the foregoing paragraphs it is by now clear that the instant Rule must fail. In the result, the Rule is discharged. Md. Jalal Sarder. -Vs.- The State and another (Criminal) 15 ALR (HCD) 127-129
Section 138 read with Code of Criminal Procedure [V of 1898]
Section 561A-Since the charge has already been framed in the case, the accused petitioner has/had every opportunity to agitate his grievances before the Trial Court by adducing proper evidence. Before trial the High Court Division cannot examine the disputed question of facts under the inherent jurisdiction of this Court under Section 561A of the Code of Criminal Procedure.
The High Court Division has given its anxious consideration to the said submissions and thereby the High Court Division has gone through the materials available on record; particularly, the petition of complaint, order sheets of the case and other annexures as annexed with the supplementary affidavits. It appears from the record that the complainant bank upon maintaining all legal formalities and procedure filed the instant case against the accused petitioner under Section 138 of the Negotiable Instrument Act, 1881. And after framing of charge while the case was pending for prosecution witnesses, the accused petitioner taking adjournment there from rushed to the High Court Division for quashing the said proceeding which has been discouraged. Md. Golam Faruque Chowdhury. -Vs. Islami Bank Bangladesh Ltd. and another. (Criminal) 15 ALR (HCD) 139-141
Section 138 read with Code of Criminal Procedure [V of 1898]
Sections 265(1), 435 and 439-A Court should not be unmindful of the fundamental principle of criminal administration of justice that in a criminal proceeding the initial burden of proof lies upon the prosecution. Thus, in a proceeding under Section 138 of the N.I. Act, the prosecution has to prove beyond reasonable doubt as to facts regarding dishonour of cheque, issuing legal notice etc. which are mandatory requirements to initiate the criminal proceeding under the section.
The High Court Division held that the N.I. Act being a special law providing rebuttable presumption against the accused under section 118 by using the word 'shall' that the cheque was drawn for considera- tion, the prosecution has to state facts, purpose being to assist the Court, from which it shall make presumption as to con- sideration inasmuch as a presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. In such an eventuality, the question of calling upon the prosecution to formally prove the statement does not arise. If the fact is of such type that no presumption can be made as to consideration, the defence has to disprove nothing. Alamgir Kabir - Vs.- The State and another (Criminal) 15 ALR (HCD) 159-162
Section 138 read with
Code of Criminal Procedure [V of 1898]
Section 410 The accused-appellant filed the instant appeal without depositing money of cheque amount which fall the appeal unmaintainable due to non-deposit of 50% of the amount of dishonoured cheque as contemplated under provisions of Section 138 of the Negotiable Instrument Act.
The High Court Division held that depositing of 50% of the face value of the dishonoured cheque cannot be said to be unscriptural in case of a pending case ended up in conviction and sentence. So, the instant appeal filed by the accused- appellant against the impugned judgment and order of conviction under sub-section (1) of Section 138 shall not lie, unless an amount of not less than fifty percent of the amount of the dishonoured cheque is deposited before filing the appeal. In the result, the appeal is dismissed without any order as to cost. Miah Md. Jaman Mehe- ruzzaman -Vs. The State and another (Criminal) 15 ALR (HCD) 192-195
Section 138 read with
Code of Criminal Procedure [V of 1898]
Section 561A-The date of issuance of the cheque is a question of fact to be ascertained at the time of trial. Non- disclosure of such fact in the petition of complaint or in the legal notice cannot offer the proceeding liable to be quashed.
It is immaterial as to whether civil dis- pute is present or not in connection with the transactions. The question is only the cheques which have been returned unpaid to the complainant and accor- dingly he sought redress by filing the above cases following the provision of the Act.
The High Court Division finds that the petitions of complaint filed with the concerned court below, examination of the complaint, order of the trial court declining or inclining to frame charge, are the mate- rials of the prosecution. The High Court Division may verify these materials to ascertain as to whether the complainant is harassing the accused-petitioner by filing false and frivolous cases one after another. In the present cases in hand, it is found that the complainant having trusted the accused-petitioner had given Tk. 1,42,00,000/-[one core forty two lakh] at a time to him in connection with supplying 'rice bran' and three options were given to the accused-petitioner as mentioned in the contract so that he could easily perform contractual terms and conditions without any pain but he has failed to do so. It is immaterial as to whether civil dispute is present or not in connection with the transactions. The question is only the cheques which have been returned unpaid to the complainant and accordingly he sought redress by filing the above cases following the provision of the Act. He has come before the court with clean hand upon refusal of the cheques unpaid by the concerned Bank of the accused-petitioner. In the above discussions, facts and circumstances of the case the High Court Division finds no merit in those rules issued by this Court. Accordingly, these rules are hereby discharged. Al-Haj Md. Fazlul Hoque -Vs. The State and another (Criminal) 15 ALR (HCD) 230-233
Section 138-Whether the Court shall examine the authenticity of the cheque only or it shall examine and consider the bonafide of the claim of the complainant and the defence case appeared in mate- rials available on record.
Chapter XXIII of the Code of Criminal Procedure consisting of sections 265A to 265L deal with the procedure to be followed when the case is tried. Those provisions cast a duty upon the Sessions Judge to apply his judicial mind in considering the materials and evidence adduced by the prosecution in order to come to a decision whether charge framed against accused person is proved or not. If after recording evidence and on perusal of the same and hearing the parties the Sessions Court considers that the evidence adduced by the prosecution are not sufficient and reliable to convict the accused, the Court shall record order of acquittal under section 265H of the Criminal Procedure Code. Since the case under section 138 of the Act is Sessions triable case, the trial Judge shall follow the aforesaid provisions of the Code of Criminal Procedure for holding trial. Md. Abul Kaher Vs. Emran Rashid and another (Criminal) 19 ALR (AD) 56-64
Section 138
The settled principle of law is that the lender bank has every right to file a case under Section 138 of the Negotiable Instruments Act, 1881 when a cheque issued in its favour is dishonoured. However, the bank is under an obligation to take initiative first for recovery of the loan amount by filing Artharin suit.
Artharin Suit is not a bar to a complaint case under the Negotiable Instruments Act, 1881. Artha Rin Suit under the Artha Rin Adalat Ain 2003 and complaint case under section 138 of the Negotiable Instruments Act, 1881 can run simultaneously as both the laws are special laws. Moreover, exclusion under section 5 of the Artharin Adalat Ain 2003 does not include a criminal case under section 138 of the Negotiable Instruments Act 1881 but a case filed in any other Civil Courts for realization of the defaulted loan.
The High Court Division held that after amendment of the Negotiable Instruments Act, in the year of 2000 "the words for the discharge in whole or in part of any debt or liability" were repealed. As such the trial court is not under any obligation to look into as to whether the cheque was blank or security cheque or even post dated. Moreover the date of the cheque in question and whether it is a blank or post dated or security cheque being question of fact, this can only be decided by the trial court after taking evidence. Therefore the High Court Division does not find any illegality or abuse of process in the proceeding pending in the trial court. As such the High Court Division is not inclined to interfere with the proceeding of Sessions Case No. 544 of 2012 arising out of C.R. Case No. 1486 of 2011. Accordingly, the High Court Division does not find merit in the Rule. In the result, the Rule is discharged. Mohammad Ali -Vs.- The State and another (Criminal) 23 ALR (HCD) 40
Section 138
According to the provision of Artha Rin Adalat Ain, 2003, Artha Rin suit relates to realization of loan or debt by a financial institution while dishonour of cheque relates to an offence by the loanee against the lender such dishonour has been created a distinct offence and made punishable offence under Section 138 of the Negotiable Instruments Act, 1881, which is both penal and procedural law. The offence is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to thrice the amount of the cheque or both. Sub- section 2 of section 138 provides for payment to the holder of the cheque any amount upto the face value of the cheque as far as is covered by the fine realized from the accused.
The High Court Division observed that on plain reading of sub-section (1) of section 138 of the Negotiable Instruments Act, 1881 shows that an offence under the section shall be deemed to have been committed the moment a cheque is drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid on any of the grounds mentioned therein. Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the loan availed by the loanee has alleged by the accused or any other cheque issued by the drawer for encashment currently. When the legislature has not made any difference between a post-dated cheque issued as security for the repayment of the loan availed by the loanee, the petitioner, being the loanee has issued a cheque for encashment currently, the High Court Division does not see any scope of making any such difference. In this respect reliance may be placed on the decision reported in 17 BLC (AD) 177. It is pertinent to note that in the decision reported in 24 BLC (AD)-139 their lordship held-that "question of fact as to the issuance of the cheque as security or advance or post dated can only be decided upon recoding evidence," Having regard to the facts and circumstances, the decisions cited above, the High Court Division finds no merit in the rule. In the result, the Rule is discharged. Md. Haroon -Vs- Bank Aisa Limited and another (Criminal) 21 ALR (HCD) 372-374
Section 138(1A)(b) read with
Section 265C CrPC
By way of any one of the above three modes mentioned in sub-section(1A) of section 138 of the Act, 1881 the accused- opposite party can make him aware before the institution of a case against him under this Act and it is sufficient to fulfill the legal requirement.
The High Court Division held that in the instant case that as per provision of sub- section (1A)(b) of section 138 of the Act, 1881 notice was sent to the accused- opposite party No. 1 through registered post with acknowledgment and the same was received on behalf of the accused- opposite party No. 1. It should be mentioned here that no objection was raised by the accused-petioner regarding service of notice upon him in the application under section 265C of the Code of Criminal Procedure. Considering the facts and circumstances it is the High Court Division considered view is that the Trial Court passed the impugned order discharging the accused is not tenable in the eye of law. In the result, the Rule is made absolute. Md. Anis Vs. Md. Anam Miah and another (Criminal) 17 ALR (HCD) 95-97
Section 138(3)
If there is a genuine claim of the complainant he can addresses his claim by way of initiating a civil proceeding under section 138(3) of the Negotiable Instruments Act. The initiation and continuation of the trial without ascertaining the statement as to consideration made in the complaint petition is an abuse of the process of the court and it is liable to be quashed.
The High Court Division held that the very intention of the legislature was to create honest drawer in the commercial field, and smooth function of financial transaction but day to day the High Court Division finds a different picture, for instances the High Court Division finds in many cases as to the fact that accused had no transaction with the complainant, the cheque was stolen, it was missing, fraudulently obtained by the complaint what not, there is no known device to reduce the nature of the cases, if the courts below at the first instance, try to ascertain the fact of consideration money mentioned in the cheque and very specific statement made in the complaint petition. This attempt may help the learned Magistrate to take decision or to draw his satisfaction to take initial statement and in a fit case to take cognizance. If there is no elaborate statement as to consideration of money She/or he may reject the complaint petition on this very ground of consideration. It is the view of the Apex Court that if there is no consideration the accused had no liability on the cheque. Persuent to above discussion with a view to fulfill the object of the special law, the High Court Division may safely direct the court below firstly: to ascertain the consideration from the statement of the petition of complaint; secondly, the signature/sign on the cheque was given by the accused if he satisfied on the very points and other points he/she shall proceed with the case in accordance with law. On the above discussion the High Court Division finds that this Rule has got merit, which must succeed. In the result, the Rule is made absolute. Mohammad Ali Talukder Vs. The State and another (Criminal) 21 ALR (HCD) 269-273
Negotiable Instruments Act (xXVI of 1881)
Section 138
The criminal proceeding under section 138 serves two purposes: firstly, to punish the offender and secondly, to recover the value of the cheque. The object of adding sub-section (2) to section 138 is to alleviate the grievance of the complainant. There can be no dispute in so far as the sentence of imprisonment is concerned that it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of facts and circumstances of each case. It is not only the rights of the offenders which are required to be looked into at the time of the imposition of sentence, but also of the victims of the crime and society at large, also by considering the object sought to be achieved by the particular legislation. [73 DLR (2021) 541]
Negotiable Instruments Act (XXVI of 1881)
Section 138
Institution of the artha rin suit is not valid a ground for quashment of or interference with the proceeding in the Sessions Case under section 138 of the Act. The issues raised in an Artha Rin Suit are confined to the realization of money along with the interest thereon. The suit does not involve any criminal liability. On the other hand, a case under section 138 of the Act involves a strict criminal liability which means that, the offence thereunder, may not involve a means rea and institution of an artha rin suit does not exempt the offender from the criminal of liability being the penalty of a maximum imprisonment of 1 (one) year or specified quantum of fine or both. [73 DLR (2021) 638]
In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [(2008) 13 SCC 678], the Supreme Court has made the following observations explaining that a cheque is a property in consideration of Section 406 IPC-
However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed. Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [(2008) 13 SCC 678]
In the decision of our Apex Court, passed in the case of 2Md. Abul Khair Shahin Vs. Imran Rashid and another, reported in 28 BLT (AD)-40 wherein their Lordships held as follows:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. To rebut the statutory presumptions as accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of consideration apparently would not serve the purpose of the accused. Something which is probable has to be proof shifted to the complainant. The burden of proof of the accused to disprove the presumption under sections 118 and 138 of the Act is not so heavy. The preponderance of probability through direct or substantial evidence is sufficient enough to shift the onus to the complainant. Inference of preponderance of probabilities can be drawn from the materials on record and also by reference to the circumstances upon which the party relies." (underlined to emphasis) [24 ALR (2022) 119]
একই বিষয় নিয়ে দেওয়ানি মামলার পাশাপাশি ফৌজদারি মামলা চলতে আইনি বাধা নেই। একই বিষয় নিয়ে দেওয়ানি মামলা বিচারাধীন রয়েছে বিধায় ফৌজদারি দায়বদ্ধতার জন্য এখতিয়ার সম্পন্ন আদালতে ফৌজদারি মামলা দায়েরে আইনি বাধা নেই। উভয় পক্ষের চুক্তিতে সালিশের ধারা থাকা সত্ত্বেও যদি কোনও ফৌজদারি অপরাধ সংঘটিত হয় তবে সংক্ষুব্ধ ব্যক্তিকে ফৌজদারি মামলা দায়ের করা থেকে বিরত রাখা যায় না। শাহনেওয়াজ আখন্দ বনাম রাষ্ট্র, ১৬ বিএলসি (২০১১) ৪৩৮।
In the case of Mirza Gorgani Vs. Firm Bhola Mal Nilal Chand, reported in AIR (1934) Lahore 293 (2) it was held as follows:
"It is obvious in any case, that the burden of proving the case lay upon the plaintiff, Pirbhu Dayal. We cannot concede in favour of the appellant that any admission, which was made by the defendant regarding the putting of a signature or a thumb-mark on the document in question, amounted to such an admission of execution as to thrust the burden of proving the case upon him. Obviously, there was no admission of execution of the document, upon which the plaintiff relied, when the defendant stated that he had put his signature and his thumb mark on a blank pieces of paper."
It was therefore held in the said judgment:
"We have no doubt at all that in view of the pleadings it was for the plaintiff to prove the due execution of the document upon which he was suing." [24 ALR (2022) 113]
The settled principle of law is that while the presumption of defective consideration is raised and that presumption has not been addressed properly that presumption certainly goes upon the complainant to prove the same again. In that case without supporting evidence a solitary witness is obviously not enough to proof the same. [24 ALR (2022) 113]
The burden of proof in certain cases also slightly goes to the accused-appellant who placed the presumption of defective consideration before the trial Court. To that extent our apex Court in the above cited decision, reported in 28-BLT(AD 40 has categorically held that:
"At the same time it is clear that bare denial of the passing of consideration apparently would not served the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof that shifted to the complainant. The burden of proof of the accused to disprove the presumption under section 118 and 138 of the Act is not so heavy. The preponderance of probability through direct or substantial evidence is sufficient enough to shit the onus to the complainant.
And then their Lordships of our Apex Court also held:
"Inference of preponderance of probabilities can be drown form the materials on record and also by reference to the circumstances upon which the party relies." [24 ALR (2022) 113]
In the Mirza Gorgani Case, reported in AIR (1934) Lahore 293 (2), their Lordships held therein their views to the effect that mere putting a signature on a document does not means its full execution and therefore, their lordships hold that-
"Obviously, there was no admission of the execution of the documents upon which the plaintiff relied when the defendant stated he had put his signature and his thumb mark on a blank pieces of paper."
And then their Lordships finally held "We have no doubt at all that in view of the pleadings it was for the plaintiff to prove the due execution of the document upon which he was suing". [24 ALR (2022) 113]
Since the presumption raised about the defective consideration as written in the cheque in question, that has to be proved or disproved by the respective party and in proving their own case they have to be given a chance again to proof their own claim by producing their supporting respective evidence. And to that extent, this Court is inclined to send the case back to the appellate Court below who is the last Court of fact and has ignored the certain admitted facts of the case as well as the grounds taken and placed in appeal before him for deciding the said appeal and as such, he is bound to discover the actual truth as behind the allegation brought in the case and then upon taking the additional evidence he has to make a decision thereto in accordance with law; however, keeping in mind the observations as made above by our apex Court and inasmuch as of the apex Court of this sub continent. Hence, by the empowerment of section 439 read with section 375 inasmuch as following the provisions of section 423 & 428 of the Cr.P.C this Court is inclined to send the case back to the appellate Court below to hold retrial of the case for taking decision upon enabling both the affected parties to place their additional evidence about to prove their own case as well as to prove and disprove the presumption raised herein. [24 ALR (2022) 121]
"Whenever a cheque is drawn by a person in order to make payment of any amount. the 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." Dr Shyamal Baidya Vs Islami Bank, 66 DLR (2014) HCD 553
"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." M/S Canara Workshop Limited Vs. Shri Mantesh reported in II(2014) BC 367(Kar.)
The mere fact that the petitioner happens to be the spouse of the 1st accused and the account can be operated by either of them cannot, according to me, make the petitioner culpably liable under Section 138 of the N.I. Act for a cheque issued by her husband to the complainant for the discharge of his liability. The averments in the petition clearly show that the petitioner had no liability; that she had not issued the cheque and that she has no personal obligation to discharge the liability to satisfy which the cheque was allegedly issued. The mere fact that the account can be operated jointly by both the accused cannot by any stretch of imagination invite culpable liability under Section 138 of the N.I. Act against the petitioner who was not the drawer and is only a joint account holder. Devi v. Haridas reported in 2004 (3) KLT 355
Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque.
8. Now, so far as the case on behalf of the original complainant that the appellant herein – original accused No. 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance.
8.1 This Court has repeatedly held that in case of a Director, complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused Company for conduct of its business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient. Anita Malhotra Vs. Apparel Export Promotion Council and anr., (2012)1 SCC 520. Cited: [Vide National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another, (2010) 3 SCC 330].
Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that “Company” means any body corporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within “other association of individuals” and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. The aforesaid cannot be accepted. Two private individuals cannot be said to be “other association of individuals”. Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside. Aparna A Shah Vs. M/s Sheth Developers P. Ltd. And another, 2013 (8) SCC 71 and Alka Khandu Avhad Vs. Amar Syamprasad Mishra & Anr. 2021 (4) SCC 675
BLANK CHEQUE
Respondent issued a blank cheque without mentioning the date and amount and sent it with a letter requesting complainant to present it after a month – Question whether blank cheque will come within the definition of cheque? – If the cheque is not drawn for a specified amount it would not fall within a definition of bill of exchange – Act of complainant in filling up amount portion and date was a material change and it could not be enforced even though it was issued for a legal liability – Alteration without the consent of the party who issued the cheque rendered cheque invalid. 2004 (1) CRIMES 567 (AP)
Admission of signature on the cheque is not equivalent with admission of execution – Right of the accused to contend that a blank signed cheque was mis-utilised by the payee cannot be taken away by such mere admission of signature. AIR 2007 (DOC) 195 (KER.); 2007 (1) KLT 525 (KER)
But that observation cannot be understood to mean that admission of signature is equivalent or synonymous with admission of execution. Admission of signature does go a long way in the attempt to prove execution of a document. But the nice legal distinction between admission of signature and admission of execution must always be borne in mind. Admission of signature may in an appropriate case persuade the Court to draw permissive presumptions of fact under S.114 of the Evidence Act. But certainly the right of the accused to contend that a blank signed cheque was mis-utilised by the payee cannot be taken away by such mere admission of signature. Ultimately when the evidence is appreciated the Court shall have to consider whether Admission of signature coupled with the other circumstances is sufficient to prove execution. But the right of the accused is to show that only the signature is his/hers and the other entires are made unauthorisedly by th complainant cannot be taken away. Judgment Link
Accused entered into security arrangement with complainant for sale of its product – Accused issued blank cheques as security to security agency agreement – No debt or liability existed when cheques were handed over to drawee complainant – Complaint based on blank cheque issued towards security is not maintainable. AIR 2007 (DOC) 269 (DEL); 2 (2007) B C 69
Negotiable Instruments Act (XXVI of 1881)
Section 140
Section 140 of the Act a penal provision creating vicarious liability which must be strictly construed. So far as of the appellants are concerned the provisions section 140 of the Act have no manner of application to the case in hand.
Admitted facts clearly establish that the accused company did not take loan from the complainant, but the company's cheque was used to repay the loan which was dishonoured. Evidences on record further establish that the appellants were neither involved nor had any knowledge whatsoever about the loan or issuance of the company's cheque. [73 DLR 336]
Moreover, section 138 of Act, 1881 which has defined "Negotiable instrument" has not made any distinction between crossed cheque "account payee" or cheque of other kind such as bearer cheque we ordinarily mean. Thus, we find that section 123A of the Act, in no way, creates any bar in proceeding with a case under section 138 of the Act, 1881. In other words, we do not see any nexus of section 123A with the proceedings to be initiated under section 138 of the Act. Sahab Uddin (Md.) =VS= The State, [3 LM (AD) 592]
Section 138- Dishonoured due to insufficient fund- We also find it difficult to accept that if the petitioner had in fact paid the money owed to the complainant in the year 2011, as alleged by him, that he did not take any steps to stop payment of the cheque issued by him earlier, especially when he himself states that the complainant told him that the cheque was lost, keeping in mind that anyone could attempt to encash that cheque. From 24.7.2011, when the petitioner apparently paid Tk.10 lac by Pay Order, till 18.09.2012 when the complaint was lodged, the petitioner did nothing to retrieve the cheque or to stop payment of the cheque. He admitted in his cross examination that he did not file any G.D. in respect of the non-return of the cheque. Moreover, we find from the deposition of the petitioner (D.W.1) that he admitted in cross examination of other transactions between himself and the complainant with regard to sale of land by the complainant and his wife and the payment of money in 2011. M.A. Azam Chowdhury VS A.B.M. Asaduzzamn & another, (1 LM (AD) 591]
Section 138- The trial court has completed the cross examination of the P.W.1 on 13-03-2014 and thereafter, the case was fixed for examination of the accused under section 342 of Criminal Procedure Code. These facts prove that the respondent has been adopting dilatory tactics. The High Court Division did not apply its judicial mind in staying the proceeding. The rule itself is not maintainable. Accordingly, the rule is discharged. The trial court is directed to complete the trial within 1 (one) month from the date of receipt of the order. ......Borak Real Estate (Pvt.) Ltd. =VS= Arifur Rahman(Mr.), [3 LM (AD) 543]
Section 138- The accused petitioner issued 60 post dated cheques in favour of complainant financial institution. As per provisions of Section 138 of the Negotiable Instrument Act, prima-facie case against the petitioner, had been made out. The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceedings were not liable to be quashed. Ehetasamul Haque =VS= The State, [3 LM (AD) 552]
Section 138- An offence under section 138 of the Negotiable Instruments Act is not compoundable, it being a special law. However, in view of the submissions made by the learned Advocates on Record, we are of the opinion that the ends of Justice will be sufficiently met if the sentence of the petitioner is reduced to imprisonment for the period already undergone by him in prison, and the sentence of fine is set aside. We note that the complainant appeared before us to say that he has received his money in full satisfaction. The criminal petition for leave to appeal is dismissed. The conviction of the petitioner under section 138 of the Negotiable Instruments act is affirmed with modification of the sentence as mentioned above...... Idris Chowkder (Md.) =VS= The State, [3 LM (AD) 560]
Sections 138 and 141(b)
Criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial- There was no violation of section 141(b) of the Negotiable Instrument Act. The High Court Division further found that the law is now settled on the point that a criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial. .....M.K. Bazlur Rahman =VS= Md. Johurul Haque, [3 LM (AD) 586]
Section 138-The powers given to the Court is discretionary- Section 138(1) empowers the trial Court to punish with imprisonment for a maximum period of one year, or with fine which may extend to thrice the amount of the cheque or both. The powers given to the Court is discretionary. The language used in the section is not such that the Court must impose fine thrice the amount of the cheque. The legislature has left the matter to the discretion of the trial Court. Shahidur Rahman Khadem =VS= The State, [3 LM (AD) 600]
Section-138 The cheques were issued by the respondent which were returned with endorsement, "payment stopped by the drawer". Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in Section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under Section 561A of the Code of Criminal Procedure. The judgment and orders of the High Court Division are hereby set aside. The concerned Courts are directed to proceed with the cases in accordance with law. .....S.M. Redwan =VS= Md. Rezaul Islam, [3 LM (AD) 605]
Section 138 & 140- If a case is instituted against a company alone, excluding the persons who were responsible to the affairs of the company's, it can be prosecuted and punished- The difference between sections 138 and 140 is that in respect of section 138 the offence is committed by human beings, that is to say, natural person and in section 140 though the expression "the person" is used which is qualified by a company which means "any body corporate and includes a firm or other association of individuals" which is a juristic person or not. It can be prosecuted for the offence under section 138. Section 140 of the Act, we are of the view that for proper and effective adjudication of the cases, the complainant (s) / drawee (s) may add the company as one of the accused in the case but for not impleading the company, the case will not fail. Mohammad Eusof Babu =VS= Jhon Provanjon Chowdhury, [3 LM (AD) 562]
Sections 138 and 140
There is a specific provision in the Code of Criminal Procedure for preferring revisional application against the order of rejection of the bail petition filed under Section 426(2A) of the Code of Criminal Procedure–– Appellate Division’s view is that there are specific provision in Sections 426 and 435 of the Code of Criminal Procedure for bail of a convicted person and if bail petition filed by a convicted person under Section 426(2A) of the Code of Criminal Procedure is rejected, then the remedy lies under Section 435 of the Code of Criminal Procedure in “Revisional Jurisdiction”.
It appears that the High Court Division without appreciating
the scope of Section 561A of the Code of Criminal Procedure and without
applying its judicial mind exceeded its jurisdiction in passing the order in
exercise of inherent power vide impugned judgment and orders dated 25.10.2022
which calls interference by this Division.
Section 138- The order of conviction passed by the trial Court was in accordance with the law as by adducing evidence the complainant succeeded in proving that a cheque for Tk. 7,00,000.00 given to him was, when duly presented, dishonoured and that before filing the complaint petition, he complied with the procedural requirements laid down in section 138 of the Act. So, this leave petition is dismissed as it is bound to be. The petitioner has in fact paid all the money due to the complainant. The complainant admitted that he had received the full amount of the cheque from the accused petitioner and that he had no further claim against him. In view of the fact that the leave petitioner has paid the full amount of the cheque, he is exonerated from paying any more and as he has already spent 3 months in prison, he need not go back to prison and the sentence of imprisonment is thus modified to the period already undergone by him in prison. Biplob (Md.) =VS= The State, [4 LM (AD) 364]
Section 138- Realization of fine to be paid to the payee Complaint petition filed by an aggrieved person, i.e. the payee, not at the instance of the 'State'; the State is not a 'necessary' party though it may be 'proper' party in case under the Act, 1881: the cheque bears the proprietary and pecuniary interest of the payee and the law rovides for realization of fine to be paid to the payee, vide sub-section (2) of section 138; by way of amendment, done by Act No. III of 2006 (09.02.2006), section 138A has been inserted making provisions to deposit not less than 50% of the amount of the dishonoured cheque, in the trial Court, as a precondition to prefer appeal; there is no similar provision for preferring appeal by a person convicted under any other law; apparently, the Act, 1881 is a piece of beneficial legislation and distinct from other penal law; hence, in appropriate case, costs may be awarded in case under the Act, 1881. Khondker Latifur Rahman =VS= The State, [4 LM (AD) 383]
Section 138- Two questions are involved in these appeals and petitions. The first question is whether if a company incorporated under the Companies Act commits an offence punishable under section 138 of the Negotiable Instruments Act, 1881 is excluded from prosecution, can a director, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case. Mohammad Eusof Babu -VS- Johan Provanjon Chowdhury, [5 LM (AD) 251]
Section 138- Cheque dishonour- There is no legal bar of filing a single case against the drawer of the cheques if the notice is served within the period of limitation intimating the fact of dishonour of the cheques with a request to pay the amount involved in those cheques within a period of thirty days. Mohammad Eusof Babu =VS Johan Provanjon Chowdhury, [5 LM (AD) 251]
Section 138- Scope to cross-examine and also be at liberty to examine defence witness- The High Court Division took the right view that the accused should be given scope to cross-examine PW1 allowing 2/3 dates as the Metropolitan Additional Sessions Judge, in the meantime, fixed the respective cases for examination of the accused under section 342 of the Code and accordingly, we endorse the same. We add by saying that the respective petitioners shall also be at liberty to examine defence witnesses, if they so desire, after their examination under section 342 of the Code. The trial Court is directed to conclude the trial as expeditiously as possible, but not later than 2(two) months from the date of receipt of this judgment.......Majad Hossain =VS= The State, [5 LM (AD) 318]
Section 138- The offence under section 138 of the Act is not a natural crime like hurt or murder. It is an offence created by a legal fiction in the statute- The offence under section 138 of the Act is not a natural crime like hurt or murder. It is an offence created by a legal fiction in the statute. It is a civil liability, transformed into a criminal liability under restricted conditions by way of an amendment of the Act. Before amendment, offending acts referred to section 138 of the Act constituted only a pure and civil liability. Mohammad Alauddin =VS= The State, [6 LM (AD) 124]
Section 138- The cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid criminal liability- Once issuance of cheque and signature thereon are found to be genuine, the court shall proceed with the proceeding. Question of fraud or fraudulent insertion can only be determined by recording and considering evidence by the trial Court after holding trial. If blank cheque is issued towards liability or as security, when the liability is proved, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid criminal liability.
The disputed question of fact as to the issuance of the cheque as 'security' or 'advance' or 'post dated' can only be decided upon recording evidence. All the appeals and petitions are dismissed. ...Mohammad Alauddin =VS= The State, [6 LM (AD) 124]
Section 138, 140 and section 141- Section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand payment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act- Section 138(1) and section 141(b). Sections 138 and 140 of the Act are substantive provisions of law giving details of the offence, when the offence is committed and who is liable; section 141 of the Act describes the procedure to be followed.
That the second and subsequent presentation of the cheque must be within six months from the date on which the cheque was drawn in order to be able to prosecute the drawer of the cheque criminally under section 138 of the Act. Upon subsequent presentation of the cheque for payment, if it is again dishonoured another opportunity will accrue to the beneficiary to take action as provided under section 138(1) of the Act, and again, in accordance with the provisions of section 141, the beneficiary of the cheque will be obliged to make complaint against such subsequent dishonour within a period of one month from the cause of action arising under proviso (c) to section 138 (1) of the Act. The offence is committed each time the cheque is dishonoured on presentation for payment.
The procedural limitation provided in section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand payment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act. It will be entirely up to the bearer of the cheque to proceed in respect of any particular dishonour of the cheque.....Nizam Uddin Mahmud Hossain =VS= The State, [7 LM (AD) 259]
Section 138- Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions- The High Court Division being last court of facts upon elaborate consideration of the evidence both the oral and documentary has come to the conclusion that the complainant failed to take any step to sell the property of the respondent, rather the respondent and his brother and sister sold the said property to the U.S.A. Embassy and the complainant did not help the respondent in any way in that regard.
In his cross examination the complainant has said, "2(a) শর্তে উল্লেখ আছে বাজার মূল্যে ক্রেতা আনিতে পারিলে আমি (বাদী) কমিশন পাব।" There is no such averment, in the petition of complaint or in the evidence that the complainant has stated that he had brought any purchaser who offered market price of the property. From the evidence quoted above it appears that the condition under which the cheques were issued was not ful- filled by the complainant appellant. Thus, the respondent instructed the bank not to encash the impugned cheques. Accordingly, the bank returned the cheques with endorsement, "payment stopped by the drawer". Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions. Consequently, the question of committing an offence by the accused respondent punishable under section 138 of the Act does not arise. All the appeals are dismissed.....Abul Kaher Shahin(Md.) =VS= Emran Rashid, [9 LM (AD) 338]
Section 138- Civil and criminal cases shall proceed in accordance with law- The final conclusion of the High Court Division is contradictory to several decisions of this Division wherein it has been clearly held that the pendency of a civil suit will not hinder proceeding of a criminal case and vice versa. In this regard, reference may be made to the cases of Monzur Alam (Md) vs State, 55 DLR (AD) 62, SAB Solaiman Ali vs Rangs Industries Limited, 2004 1 Law Guardian (AD) 20.
We are constrained to hold that the impugned judgements and orders of the High Court Division are palpably erroneous set aside. Accordingly, the criminal petitions for leave to appeal are disposed of with direction that both civil and criminal cases shall proceed in accordance with law....Eastern Bank Limited VS Sirajuddula(Md), [9 LM (AD) 566]
Sections 138, 140- The disputed questions of facts which should be decided after appreciating the evidence at the trial- The High Court Division in disposing the application under the provision of section 561A of the Code does not require to formulate any disputed question of facts, rather, only to see whether the story of the F.I.R. or petition of complaint discloses the criminal offences or not. Therefore, the High Court Division exceeded the extraordinary jurisdiction by quashing the proceeding. Accordingly, the judgment of the High Court Division is set aside, Ashfaq Hossain =VS= The State, [10 LM (AD) 515]
Section 138, 140- According to section 102 of the Evidence Act, 1872 the burden of proof is upon the respondent to prove that though she was the director of the company, the offence has been committed without her knowledge or that she was a non-executive director of the company and she was not involved in day- to-day affairs of the company etc.
The innocence of the respondent No.1, the director, has to be proved before the Court by adducing evidence and thus, the director, respondent No.1 has to face the trial. Only after taking evidence during trial if the director, respondent No.1 herein, is found that she was not to be a person-in-charge of the affairs of the company at the relevant time of the issuance of the cheque only then she may be exonerated from the charge....Phoenix Finance and Investment Ltd. =VS Yeasmin Ahmed, [10 LM (AD) 522]
PRESUMPTION UNDER SECTION 139 NI ACT
Section 139
Negotiable Instruments Act provides: 139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. “The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. Because both sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn…it is obligatory on the courts to raise this presumption in every case where the factual basis for the raising of this presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused.” AIR 2001 SUPREME COURT 3897
Section 141- If a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons can not, on that score alone, escape from criminal liability created through legal fiction envisaged in section 141 of the Act.' Mohammad Eusof Babu -VS- Johan Provanjon Chowdhury, [5 LM (AD) 251]
Negotiable Instruments Act, 1881 (India)
Section 138- Appellant is acquitted of the charge under section 138 of the N.I. Act subject to payment Filed a complaint under Section 138 of the Negotiable Instruments Act in C.C. No.40274/2002 before the XVIII ACMM & XX ASCJ, Bangalore City. The Trial Court by its judgment dated 27.04.2004 acquitted the appellant/accused on the ground that the complainant has not proved the case beyond reasonable doubt as the documentary and also the oral evidence adduced by the appellant/accused substantiates. Being aggrieved, the said complainant preferred appeal before the High Court in Criminal Appeal No.895 of 2004, in and by which the High Court reversed the acquittal and convicted the appellant as aforesaid in paragraph (2). Being aggrieved, the appellant/accused is before us in this appeal by way of special leave. The Court of Small Causes and ACMM, Bangalore, which has at an amicable settlement......A.T. Sivaperumal =VS= Mohammed Hyath, [3 LM (SC) 53]
Section-138- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by him, the presumption under S.139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. In view of the aforesaid facts and circumstances, the impugned order dated 27.09.2013 passed in Criminal Revision Petition Nos. 1657 and 1658 of 2008 is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored......T.P. Murugan =VS= Bojan, (5 LM (SC) 73]
Section 138- The cheques issued by him were not ornamental but were meant to be presented if the amount in question was not paid within the extended period- The trial court found the Respondent guilty and accordingly convicted him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of one year. In addition, court the trial awarded the compensation to the Complainant/Appellant in sum a Rs. 12,00,000/- to be paid within a period of three months.
The Respondent preferred Criminal Appeal No.9 of 2010 before Additional Sessions Judge, Kamrup at Guwahati, who, while upholding the conviction of the Respondent modified the sentence awarded to him to payment of a fine of Rs.2,000/- (Rupees Two Thousand only) and, a default sentence of imprisonment for a period of one month, in addition to the amount of compensation awarded by the trial court.
The High Court has, as seen earlier, set aside the conviction of the Respondent and allowed Criminal Revision No.41 of 2012.
A negotiable instrument is supported by consideration there was no dispute that such a consideration existed in as much as the cheques were issued in connection with the discharge of the outstanding liability against Nazimul Islam. At any rate the endorsement made by the respondent on the promissory note that the cheques can be presented for encashment after 25-09-2007 clearly shows that the cheques issued by him were not ornamental but were meant to be presented if the amount in question was not paid within the extended period. The High Court in our view fell in error in upsetting the conviction recorded by the Courts below who had correctly analysed the factual situation and applied the law applicable to the same. Don Ayengia =VS= The State of Assam, [1 LM (SC) 600]
Section 138 & 139- The trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case.
No evidence was led by the accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption under Section 139 can be rebutted on the evidence of PW.1, himself has not been explained by the High court. We are of the view that the High Court committed error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction. In the result, the appeal is allowed, judgment of the High Court is set aside and judgment of trial court as affirmed by the Appellate Court is restored. Kishan Rao =VS= Shankargouda, [5 LM (SC) 77]
Section 138- Cheque dishonour-
The High Court patently erred in holding that the burden was on the appellant- complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above.
The appeals are allowed. The judgment and order of the High Court is set aside. The conviction of the respondent under Section 138 of the Negotiable Instruments Act is confirmed. However, the respondent- accused is sentenced only to fine, which is enhanced to Rs.16 lakhs and shall be paid as compensation to the appellant complainant. The fine shall be deposited in the Trial Court within eight weeks from the date, failing which the sentence of imprisonment of one year as imposed by the Trial Court shall revive. There shall be no order as to costs.... Bir Singh -VS- Mukesh Kumar, [6 LM (SC) 94]
Section 138, 141- Cheque dishonour- The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished.
During the pendency of these proceedings, this Court on 28 November 2008 recorded the statement of the appellant that he was willing to deposit the entire cheque.
In our view, having regard to the intent of the order which was passed by this Court on 28 November 2008, it would be appropriate and proper if the amount deposited in this Court, together with accrued interest, is paid over to the respondentcomplainant. The criminal appeal is, accordingly, disposed of. ...Himanshu =VS= B. Shivamurthy, [6 LM (SC) 90]
Section 138 and 143A- Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book- In the present case, the Complaint was lodged in the year 2016 that is to say, the act constituting an offence had occurred by 2016 whereas, the concerned provision viz. Section 143A of the Act was inserted in the statute book with effect from 01.09.2018. The question that arises therefore is whether Section 143A of the Act is retrospective in operation and can be invoked in cases where the offences punishable under Section 138 of the Act were committed much prior to the introduction of Section 143A. We are concerned in the present case only with the issue regarding applicability of said Section 143A to offences under Section 138 of the Act, committed before the insertion of said Section 143A.
"143A. Power to direct interim compensation. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant -
(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1) shall not exceed twenty per cent of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from the date of the order under subsection (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown complainant. by the
(5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section."
Ultimate analysis, we hold Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book. Consequently, the orders passed by the Trial Court as well as the High Court are required to be set aside. The money deposited by the Appellant, pursuant to the interim direction passed by this Court, shall be returned to the Appellant along with interest accrued thereon within two weeks from the date of this order. The Appeal is allowed in aforesaid terms....G.J. Raja =VS= Tejraj Surana, [7 LM (SC) 261]
Section 138, 139- Cheque dishonour- The oral and the documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that the cheques were issued to discharge the legally enforceable debt. With the evidence adduced by the complainant, the courts below ought to have raised the presumption under Section 139 of the Act. The evidence adduced by the respondent-accused is not sufficient to rebut the presumption raised under Section 139 of the Act. The defence of the respondent that though he made payment for the commodities/rice bags, the blank cheques were not returned by the appellant- complainant is quite unbelievable and unacceptable. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.
The impugned judgment of the High Court in Criminal Appeal Nos.53 and 54 of 2006 is set aside and these appeals are allowed.
The respondent-accused is convicted under Section 138 of Negotiable Instruments Act and a fine of Rs.2,97,150/- (Rs.53,171/+ Rs.1,93.979/- + compensation of Rs.50,000/-) is imposed on the respondent in default of which, the respondent shall undergo imprisonment for six months. The fine amount of Rs.2,97,150/- is to be deposited before the trial court within twelve weeks from today, failing which the respondent shall be taken into custody to serve the default sentence. On deposit of fine amount, the amount of Rs.2,97,150/- shall be paid to the appellant-complainant. M/S Shree Daneshwari Traders =VS= Sanjay Jain, [7 LM (SC) 268]
Sections 138, 148- Cheque Dishonour- The criminal complaints against the appellants under Section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which Section 148 of the N.I. Act came to be amended and therefore amended Section 148 of the N.I. Act shall not be made applicable The appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, considering the object and purpose of amendment in Section 148 of the N.I. Act and while suspending the sentence in exercise of powers under Section 389 of the Cr.P.C., when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the N.I. Act.
Facts and circumstances of the case and considering the fact that the appellants were bonafidely litigating before this Court challenging the order passed by the first appellate court, in exercise of powers under Article 142 of the Constitution of India and in the peculiar facts and circumstances of the case and the amount to be deposited is a huge amount, we grant further four weeks' time from today to the appellants to deposit the amount as directed by the first appellate court, confirmed by the High Court and further confirmed by this Court.
We see no reason to interfere with the impugned common judgment and order passed by the High Court dismissing the revision application/s, confirming the order passed by the first appellate court directing the appellants to deposit 25% of the amount of fine/compensation pending appeals. The instant appeals are accordingly dismissed with the aforesaid observations and appellants are now directed to deposit the amount directed by the first appellate court within extended period of four weeks from today. ...Surinder Singh Deswal @ Col. S.S.Deswal =VS= Virender Gandhi, [7 LM (SC) 284]
Section 138, 139- Dishonour of 7 cheques The matters relating to 7 cheques issued by the appellant in favour of respondent No. 2 for a sum of Rs. 3 lakhs each are being considered together: and the appellant is being penalised with double the amount of cheques in each case i.e., in all a sum of Rs. 42,00,000/-, in our view, the appellant deserves to be extended another chance to mend himself by making payment of fine, in case of default in payment of the amount of fine, he would undergo simple imprisonment for a period of one year.
The sentence is modified in the manner that in each of these 7 cases, the accused- appellant shall pay fine to the extent of double the amount of each cheque (i.e., a sum of Rs. 6 lakhs in each case) within 2 months from today with the stipulation that in case of default in payment of fine, the accused-appellant shall undergo simple imprisonment for a period of one year. On recovery of the amount of fine, the complainant-respondent No. 2 shall be compensated to the tune of Rs. 5.5 lakhs in each case. In the event of imprisonment for default in payment of fine, the sentences in all the 7 cases shall run concurrently. ...Rohitbhai Jivanlal Patel =VS= State of Gujarat, [8 LM (SC) 15]
Section 138- Modified order-
Cheque dishonour-Appellant No.2 would be liable to undergo the sentence of simple imprisonment as awarded by the High Court. However, given the peculiar facts and circumstances of the case, namely, that the appellants volunteered and thereafter have deposited the cheque amount with the Registry of this Court in the year 2018, we are inclined to take a lenient view. The impugned judgment of the High Court dated 09112017 is thus modified, and it is directed that Appellant No.2 shall not be required to undergo the awarded sentence. M/s. Kalamani Tex =VS= Balasubramanian, [10 LM (SC) 6] P
Section 138 r/w Section 141- Quashed and set aside The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside.
The impugned judgment and order dated 21.08.2019 passed by the High Court in Criminal Writ Petition No. 2595 of 2019 refusing to quash the criminal complaint against the appellant for the offence punishable under Section 138 read with Section 141 of the NI Act is hereby quashed and set aside. The complaint case pending in the Court of the learned Metropolitan Magistrate filed by respondent No. 1 - original complainant being C.C. No. 2802/SS/2016 is hereby quashed and set aside. The appeal is allowed accordingly.....Alka Khandu Avhad -VS- Amar Syamprasad Mishra, [10 LM (SC) 11]
Section 138-Unless law is strike down or amended we have no authority or scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with its object, in exercising the power under section 561A of the Code. Mahmudur Rahman Nazlu vs State, 64 DLR 179
Section 138-The requirement is a notice in writing to the drawer of the cheque within fifteen (15) days of the receipt of the information by him from the Bank regarding the return of the cheque as unpaid. The legal implication is that notice must not exceed fifteen (15) days and notice can very well be given seven (7) days time. Sayed Hasan Imam Litu vs Al-Arafah Islami Bank, 64 DLR 255
Section 138-When a cheque is issued for payment of any amount of money, drawer of the cheque is under obligation to honour the same or arrange payment. If it does not arrange payment of the cheque money and the cheque is dishonoured, such an act may constitute an offence of cheating punishable under section 420 of the Code. Abul Khair Chandu vs State, 65 DLR 230
Section 138-Stop Payment-Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under section 561A of the Code. SM Redwan vs Md Rezaul Islam, 66 DLR (AD) 169
Section 138-The cheque was dishonoured with the endorsement "payment stopped by the drawer", a clear prima-facie case of the commission of the offence punishable under section 138 of the Act, has been made out against the accused. Ahmed Lal Mia vs State, 66 DLR (AD) 204
Section 138-It is true that in the judgment sought to be reviewed, there has been no detailed discussions as to the point raised before the High Court Division that the respective petition of complaint having been filed before expiry of the statutory period as stipulated in clause (c) of the proviso to section 138(1) of the Act, was barred by law, this Division having affirmed the judgment and order passed by the High Court Division which took the view that though the respective petition of complaint was filed before expiry of thirty days from the date of receipt of the notice issued under clause (b) of the proviso to section 138, was maintainable in law, in fact, gave the answer. Sarwar Hossain Moni (Md) vs State, 66 DLR (AD) 283
Section 138-The proposition of law which is consistent and no longer a resintegra is that a criminal case and civil case though arising out of the same transaction can proceed simultaneously. Aminul Karim (Md) vs Government of Bangladesh, 67 DLR 354
Section 138-A close reading of sub- i section (1) of section 138 of the Act, shows that it has noting to do with the recovery of loan amount. The whole scheme of the law is to haul up the drawer of the unpaid/ dishonoured cheque(s) for not arranging the funds against the issuance of such cheque(s) and then its/his failure to make the payment of the amount of the money of the unpaid/dishonoured cheque(s) on demand by the payee or, as the case be, by the holder in due course of the cheque(s) in writing within thirty days of the receipt of such notice as provided in clauses (b) and (c) respectively of sub-section (1) of section 138 of the Act. Aminul Karim (Md) vs Government of Bangladesh, 67 DLR 354
Section 138-There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both can stand together. Aminul Karim (Md) VS Government of Bangladesh, 67 DLR 354
Section 138-Once a cheque is drawn and handed over to the drawee and the latter has presented it in his account for encashment and thereafter, if the cheque is returned to him with an endorsement that the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid for that account or that t was dishonoured because of 'stop payment instructed by the Bank, an offence punishable under the section would constitute provided that if the drawee fulfills the conditions provided in the proviso to sub-section (1). If the drawer of the cheque is a Company, firm or an association of individuals the said money, firm or association of individuals would also be prosecuted for commission of offence under section 138 subject to the fulfilment of the conditions. (PER SK SINHA, CJ MAJORITY) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 138-Onus The onus on the part of the drawee is primary being based on the maxim e.i.: 'incumbit probatio qui dicit, non qui negat' this is because the liability envisaged in sub-section (1) is on the person in-charge of, and was responsible to the business of the company is fixed by the legislature because he is directly responsible for the offence. (Per SK Sinha, CJ majority) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 138-The dishonour of a cheque does not itself constitute an offence under section 138. If the drawer of such cheque fails to make payment of the amount of money to the payee within thirty days of receipt of the notice, the cause of action for constituting the offence will arise, and if a complaint is filed within one month of the date on which the cause of action arises, the court shall take cognizance of the offence. So, the cause of action will arise if the drawer fails to make payment to the payee. Now, if the same drawer fails to make payment of the amount of money covered by the cheque (s) within the stipulated time, does it constitute the cause of action? It does. If it does constitute the cause of action, there will be no legal bar to file a case for prosecuting the drawer for the cause of action. Here the cause of action is not distinct but the same. (PER SK SINHA, CJ MAJORITY) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 138-The complainant(s)/ drawee(s) of the cheques may, if so advised, arraign by adding the Companies in the category of accused if they feel that for getting effective relief in the cases the presence of the companies is necessary in the cases. (PER SK SINHA, CJ MAJORITY) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 138-Once a cheque is drawn it has to be presented within 6 (six) months from the date it is drawn or within the period of it's validity; if dishonoured on placing it for encashment the payee has to make a demand for payment by giving a notice in writing within 30 (thirty) days on receipt of information from the bank regarding the return of the cheque and that the cause of action shall arise if the drawer failed to pay within 30 (thirty) days of receipt of such notice. Nurul Islam vs State, 69 DLR 312
Section 138-At the time of charge hearing, the Court of Joint Metropolitan Session in true sense had no legal scope to consider or decide those facts and it was therefore well justified to refuse the prayer filed under section 265C of the Code. Majharul Hoque Monsur (Md) vs Mir Kashim Chowdhury, 69 DLR 241
Section 138-There are no legal restrictions upon parties to commence legal proceedings both under section 138 of the Act simultaneously with a civil suit, i.e. the Artha Rin suit. The offence committed under section 138 of the Act and its consequences are different to the consequences contemplated under the Artha Rin Suit. Artha Rin Suit relates to the realization of money whereas dishonouring of cheque relates to a statutory offence under the Act of 1881. Mofizur Rahman (Md) vs Bangladesh Represented by Secretary Ministry of Law, 69 DLR 402
Section 138-The offence committed under sections 420 and 406 are totally different from one committed under section 138(1) of the Negotiable Instruments Act, 1881, while the ingredients as, well as, the reliefs and punishments provided for, under two laws are different. Section 138(2) provides for imposing fine and to pay fine, to the extent of face value of the dishonoured cheque, to the 'payee'/ complainant. Section 138B provides for depositing not less than 50% of the dishonoured cheque in the trial court, for preferring appeal against conviction under section 138 of the Negotiable Instruments Act, 1881. There is no such provision under section 420 or 406 of the Penal Code. Besides, joinder of offence committed under section 138(1) of the Negotiable Instruments Act is not permitted with one committed under the Penal Code. Nurul Islam vs State, 69 DLR 308
Section 138-Issuing and signing of the cheques would be proved at the trial. Whether he managed the affairs of the company or not is a disputed question of facts. The High Court Division was not justified in passing the impugned judgment considering the documents submitted before it. The High Court Division was based upon disputed question of facts and defence materials, those materials were not submitted at the trial Court, rather, directly submitted before the High Court Division for consideration in the proceedings under section 561A of the Code. The complainant has no occasion to know about the transfer of shares because it is the internal affairs of the accused and his company which ought not have scrutinized by the High Court Division while exercising its inherent jurisdiction. On the basis of such defence material quashing of the proceedings of the 3(three) cases out of 5(five) is serious error of law. Ashfaq Hossain vs State (Criminal) 74 DLR (AD) 40
Section 138
The Criminal case against the petitioner was brought under a special law, name- ly the Negotiable Instruments Act, which is not compoundable and, as such, the compromise reached by the parties outside the court is of no conse- quence. However, it is noted that the claimant has received the money owing to her and also that the petitioner has served in jail for more than 3 months. Md. Mostafizur Rahman vs. The State (Muhammad Imman Ali J) (Criminal) 11 ADC 800
Negotiable Instruments Act, 1881, section 138, 123A, (2) (a)
We are to remember that the principal object of interpretation of the statutory law is not only to find out particular meaning of a word or words but to find out the intention of the legislature which has been expressed through the medium of words. Dr. Abdullahel Bari vs. Md. Rahat Chowdhury (Mohammad Anwarul Haque J) (Criminal) 11 ADC 826
Section 138
Whether a pending civil suit in respect of the dishonoured cheque can be used as a shield by the accused for his pro- tection from being prosecuted in respect of an offence committed under section 138 of the Act, 1881. Fazal Ahmed vs. The State (Md. Abdul Wahhab Miah J) (Criminal) 11 ADC 833
Section 138
Section 439 read with section 435 of the Code of Criminal Procedure (the Code) being Criminal Revision No.348 of 2012 for setting aside two orders No.7 dated 26.02.2012 and No.4 dated 29.11.2011 (as arranged in the cause title of the revision application) passed by the learned Metropolitan Sessions Judge.-Ahmed Lal Mia vs. The State (Md. Abdul Wahhab Miah J) (Criminal) 11 ADC 960
Section 138(b)
Application before the High Court Division under Section 561A of the Code of Criminal Procedure the accused respondent did not make any statement to the effect that the person who received the notice was not author- ized to receive the same, therefore, the High Court Division committed an error of law in quashing the petition of complaint on the ground of alleged non- service of notice upon the accused- respondent. Alhaj Golam Rasul Belal vs. Habibullah Shakir (Md. Muzammel Hossain CJ) (Criminal) 12 ADC 363
Section 138
There being no specific provision for appeal under the Negotiable Instruments Act, apart from the deposit of 50% of the value of the cheque in the court passing the award, the provisions of the Code of Criminal Procedure shall apply with regard to appeal, revision etc. Chowdhury Abzal Hossain vs. The State (Muhammad Imman Ali J) (Criminal) 12 ADC 556
Section 138
Upon conclusion of the trial, the accused-petitioner was found guilty and convicted under section 138 of the Negotiable Instruments Act, 1881 and sentenced to suffer simple imprison- ment for three months and to pay a fine of Tk. 15,00,000.00 that would be payable to the complainant. M.A. Azam Chowdhury vs. A.B.M. Asaduzzamn (Muhammad Imman Ali J) (Criminal) 13 ADC 79
Section 138
The convict petitioner surrendered before the trial court and was enlarged on bail and, thereafter, the case was transferred to the Metropolitan sessions Judge, Dhaka and it was registered as Metropolitan sessions Case No.8304 of 2012., Eventually the case was heard and disposed by the learned Additional Metropolitan Sessions judge, Second court, Dhaka, who framed charge under section 138 of the Negotiable Instruments Act, 1881 (the Act) against the petitioner herein. M.A. Azam Chowdhury vs. A.B.M. Asaduzzamn (Muhammad Imman Ali J) (Criminal) 13 ADC 83
Section 138
Whether if a company incorporated under the Companies Act. Commits an offence punishable under section 138 of the Negotiable instruments Act, 1881 is excluded from prosecution, can a direc- tor, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case.) Mohammad Eusof Babu vs. Johan Provanjon Chowdhury (Surendra Kumar Sinha J) (Criminal) 14 ADC 792
Section 138
Evidently the High Court Division in admitting the appeal has overlooked the fact that the matter had already been disposed of on appeal heard by the Additional Metropolitan Sessions Judge and that any second appeal, in the circumstances was misconceived where the lower appellate Court has reversed the findings of the trial Court by acquit- ting the accused the only redress for the complainant is to file a revisional application before the High Court Division. A. F. M Ahmed Hossain vs. Md. Azizul Haque (Mohammad Imman Ali J) (Criminal) 14 ADC 854
Section 138-Where there is no non-obstante clause the jurisdiction of the court, constituted under the Code of Criminal Procedure cannot be taken away or barred the court below committed no illegality in taking cognizance or framing of charge under the general provision of law. Moniruzzaman vs ANM Didar-e-Alam 54 DLR 445.
Section 138-The convict respondent admitted about the loan, issuance of cheques by him and dishonour of cheques and that a notice under section 138(1)(b) has been given by the complainant. Thus, all the legal requirements are present to bring the offence under section 138 of the Negotiable Instruments Act. Amir Hossain vs MA Malek and others 56 DLR (AD) 146.
Section 138-The complainant served a legal notice within 15 days of the receipt of the information of return of the cheques. So there is no valid ground for quashing the proceeding under section 138 of the Act. Habibur Rahman Howlader vs State 53 DLR (AD) III.
Section 138-Under section 138 of the Negotiable Instruments Act an offence is commit- ted if a cheque is dishonoured and if payment is not made within 15 days after receipt of a legal notice. It is a settled law that criminal proceeding can be proceeded independently of the civil suit. Monzur Alam vs State 55 DLR (AD) 62.
Section 138-Admittedly, in the present case the cheque was presented to the bank after expiry of 6 months from the date of drawing of the cheque. So, obviously this case under section 138 of Negotiable Instruments Act is not maintainable in view of the restriction imposed by proviso (a) to the said section. So, the proceeding is liable to be quashed. MA Mazid vs Md Abdul Motaleb 56 DLR 636.
Section 138 In the instant case the plain subject matter of this case is the dishonour of the cheque issued by the accused now late Khalilur Rahman in favour of the complainant which clearly comes within the mischief of section 138 of the Negotiable Instruments Act since the impugned cheque has been returned unpiad for insufficiency of fund. Khalilur Rahman being dead his heirs Mrs Nazma Begum vs Md Habib- ullah 57 DLR 603.
Section 138-When the reason for return of the cheque has been mentioned as "refer to drawer" or insufficiency of fund, it is the primary duty of the drawer of the cheque to make payment of the money to the payee within 15 days from the receipt of the notice. Khalilur Rahman being dead his heirs Mrs Nazma Begum vs Md Habibullah 57 DLR 603.
Section 138 From the heading of the section it becomes clear that the legislature never intended dishonour of the cheques to be made punishable only in case of insufficiency of fund or exceeds the amount arranged to be paid since the word "etc" has also been used there by the caption of the section. So, it can be presumed that legislature contemplated various other reasons where the cheque is dishonoured. Khalilur Rahman vs Md Habibullah 57 DLR 603.
Section 138-The offence under section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under section 138 of the Act and complainant can choose any one of the Courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a bank at Chittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed. Abdul Alim vs Biswajit Dey 59 DLR 236.
Section 138 Since the accused-petitioner at no point of time denied his signature on the cheque he must have to discharge the onus as to why he signed the cheque when the cheque was delivered/ given to the complainant. A legitimate claim of the complainant cannot be frustrated on mere technicality. Abdul Alim vs Biswajit Dey 59 DLR 236.
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. Nizamuddin Mahmood vs Abdul Hamid Bhuiyan 60 DLR (AD) 195.
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. Khokan Bhuiyan vs Md Ahsanullah, State 60 DLR 377.
Section 138-Whether the accused received the legal notice or not, it is merely a disputed question of fact and the same should be decided in trial. The plea of the accused is nothing but the defence plea. Be that as it may, the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is a prima facie case for going for trial. Shamsul Alam vs State 60 DLR 677.
Section 138 Section 138 of the Act gives special law of limitation and it starts from the date of presenting the cheque and 'on' receipt of the information from the Bank, on receipt of the information means and includes as and when the drawee received the notice of dishonouring of the cheque. Abul Kalam Azad vs State 61 DLR 91.
Section 138 Stay of proceeding in criminal matter when not entertainable The proceeding under section 138 of the Negotiable Instruments Act appears to be quite independent in nature with a very limited scope for adjudication which is not at all related to the issues involved in the Civil Suit. Moreover, at the fag end of trial of the crimi- nal case, such an application praying for stay order was not at all justified and entertainable. Zafar Ahmed vs Mir Iftekharuddin 61 DLR 732.
Section 138-Whether the notice as required to be served under section 138 of Nego- tiable Instruments Act is essentially a question of fact to be proved by adducing evidence at the time of trial, inasmuch as there is specific assertion in the complaint petition that such a notice was, served. Sheikh Mashuk Rahman vs State62 DLR 28.
Section 138-Intention of the legislators have been made further clear by incorporating section 138A in the Negotiable Instruments Act, 1881, prescribing provision for depositing not less than 50% of the amount of the dishonoured cheque is a pre-condition for filing appeal against any order or sentence under sub-section (1) of section 138. Sheikh Mashuk Rahman vs State 62 DLR 28.
Section 138 Joint Signature "Stop pay- ment instruction" cannot exonerate the drawer of a cheque from the criminal liability under section 138 of the Act. Similarly, if the drawer of the cheque intentionally issues a cheque on the joint account by putting his single signature with a malafide intention of getting it dishonoured, he cannot also avoid liability of being prosecuted under section 138 of the Act. Shah Alam (Md) vs State 63 DLR 137.
Section 138-Non disclosure of the date of receipt of notice under section 138(1)(b) of the Negotiable Instruments Act is a question of fact which will be decided at the time of trial. Noor Jamal vs State 63 DLR 531
Section 138 Filing the petition of complaint before arising cause of action, after expiry of 30 days from the date of receipt of the legal notice, the cause of action arose and, as such, the trial Court did not commit any illegality by framing charge against the petitioner under section 138 of the Act. Shahidul Islam vs State 63 DLR 536
Sections 138, 138A & 140-A prosecu- tion launched under section 138 of the Negotiable Instruments Act is different from one launched under sections 420/406 of the Penal Code. Not only the ingredients are different between the offences punishable under these two statutes, rather the liability under section 138 of the Nego- tiable Instruments Act, as imposed for dishonour of cheque, is a strict liability. Sheikh Mashuk Rahman vs State 62 DLR 28
› Sections 138 and 140-For not making any allegation in the complaint petition of committing any offence under section 138 by the drawer-company, provisions of section 140 of the Act would not be applicable and there is no scope in law to hold the accused guilty in the case or to initiate and continue the proceeding. Ferdous Khan vs Islami Bank Bangladesh Ltd 63, DLR 540
Sections 138 and 141-There is no legal bar to try the offence under same transaction under one case. Zahed Hossain vs State 61 DLR 386
Sections 138 and 141-Admittedly there was a transaction between the parties and the petitioner issued the cheque in question but the law of limitation stands as an impediment to proceed further with the case in view of clause (b) of section 138 and clause (b) to section 141 of the Act. Time is a great factor of human life specially when it comes into play for legal purpose. The proceeding of the CR case is quashed. Abdus Salam vs Md Munshi Rashed Kamal 54 DLR 234.
Sections 138 and 141-Even though the case is pre-mature and it was filed before the expiry of 15 days from the date of receipt of the notice, the proceeding is not liable to be quashed. Satya Narayan Poddar vs State 403
Sections 138 and 141-Taking of cogni- sance upon the petition of complaint filed by the Attorney upon due examination under section 200 of the Code of Criminal Procedure is "perfectly valid and appropriate". Hashibul Bashar vs Gulzar Rahman 56 DLR (AD) 17.
Sections 138 and 141-In view of discus- sions made the facts and circumstance of the case, there was no other alternative but to quash the proceeding as the opposite party No. 1 com- plainant had earlier taken recourse to clause (b) of section 138 of the Act in an unsuccessful manner which does not in any way give rise to further cause of action as cause of action as provided under sections 138 and 141 of the Act arises only for once. Dr Md Mofizur Rahman vs Md Bashir- ullah 55 DLR 630.
Sections 138 & 141-An offence under section 138 of the Negotiable Instruments Act is for dishonour of a cheque simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal Code for cheating is a distinct offence. The rule of law about the peremptory application of the special law in place of the general law for trial of an offence hardly applies when the offences are distinct under the two laws. Nurul Islam vs State 49 DLR 464.
Sections 138 and 141-Since the cheques issued by the petitioner were dishonoured for insufficient fund and he failed to pay the amount of the dishonoured cheques in time, offence under section 138 of the Act has been disclosed agianst him. The facts narrated in the complaint do constitute prima facie offence under section 138 of the Act and, as such, question of quashing the proceeding does not arise. Solaiman vs State 62 DLR 385.
Sections 138 and 141-Since there is no legal bar against the initiation, framing of charge, and continuation of the proceedings and, as such, the proceedings do not amount to an abuse of the process of the Court. Abeda Chowdhury vs State 63 DLR 118.
Section 138A-This Court is of the view that said amendment dated 9-2-2006 will have prospective effect on all cases to be filed after the amendment came into force as in the amending enactment as above no intention was expressly stated about retrospective effect of the same. Accordingly, there was no need for deposit of 50% of the amount of dishonoured cheque before filing of the concerned appeal. Impugned order of rejection of the memo of appeal being against the spirit of section 6 of General Clauses Act the same cannot be sustainable. Akhter Hossain Md vs Hasmat Ali and State 60 DLR 368.
Section 138(a) Cheques were presented to the bank twice within six months from the date it was drawn-Computation of 15 days for serving notice should be done from the date on which the cheques lastly returned by the bank-This having were been done the application under section 561A of Code of Criminal Procedure is mis- conceived. Habibur Rahman Hawlader vs State 55 DLR 199.
Section 138(b) The petitioner would get opportunity to raise the point whether the cheque was presented within time at the time of framing charge and the question when the cheque was presented to the bank for the 1st time cannot be decided in this application under section 561A of the Code of Criminal Procedure which is a disputed question of fact. Hasibul Bashar vs Dilshed Huda 55 DLR 200.
Section 138(1)-Under the scheme of the Act the offence punishable under section 138 would be complete only upon the failure by the drawer to pay within fortnight of the receipt of notice from the payee of the dishonour of the cheque. When drawer fails to make payment within the period specified in clause (c) of the proviso the offence is complete. Khalilur Rahman vs Md Habibullah 57 DLR 603.
Section 138(1)-The account is not main- tained in the name of the accused-petitioner; rather it is maintained in the name of her hus- band. The cheque was not bounced because of insufficiency of funds or excess of the amount arranged to be paid as agreed upon between the drawer and the Bank. In such a posture of things, section 138(1) cannot be applied against the accused-petitioner. Shahnaj Begum Munni vs State 63 DLR 279.
Section 138(1)-The cheque was issued to discharge, either in whole or in part, a legally enforceable debt or liability. The accused- petitioner had never any debt or liability to discharge. It is the husband of the accused petitioner who had the debt or liability to discharge. The liability or debt of the husband of the accused-petitioner cannot be thrust on to the shoulder of the accused-petitioner. Given this scenario, if the accused-petitioner is made liable for the debt or liability of her husband, that will go against the spirit of the mandate of section 138(1) of the Act. Shahnaj Begum Munni vs State 63 DLR 279.
Section 138(3)-The complainant may initiate a criminal proceeding against them under section 420 of the Penal Code, if he is so advised. Besides, the door of the Civil Court is always open to the complainant to recover the loan amount by filing a money suit against the party concerned. Shahnaj Begum Munni vs State 63 DLR 279.
Section 138(1)(b)-As required notices were issued by registered post, one at the home address and another at the business address of the accused-petitioner but the same were returned by the postal peon. The very correctness of serving legal notice under section 138(1)(b) of the Act and receipt of the same by the drawer of the cheque can only be adjudicated at the trial. Such pro- ceedings cannot be quashed for factual aspect of a case. (Per Md Ataur Rahman Khan J). Zahed Hossain vs State 61 DLR 386.
Section 138(1)(b) Notice under section 138 (1)(b) of the Act is a question of fact which will be decided at the time of trial after taking evidence. So, the 8 dishonoured cheques issued through single notice and initiating single proceeding, the petitioner would not have any prejudice by filing of one complaint for 8 (eight) cheques between the same parties and dishonoured on the same date cannot render the proceedings under section 561A of the Code of Criminal Procedure liable to be quashed. (Per Md Ataur Rahman Khan J). Zahed Hossain vs State 61 DLR 386.
Section 138(1)(b) Since the complainant filed the complaint after expiry of the statutory period of 30 days from the date of issuance of notice under proviso of section 138(1)(b) of the Act and as such taking cognizance of complaint by the Magistrate was not legal and since taking of cognizance is illegal, the continuation of the proceeding will create abuse of the process of the Court. Rafiqul Islam vs State 62 DLR 377.
Section 138(1)(c) Section 141(1)(b)- Cause of action clause (b) of section 141, read with sub-section (1) of section 138 of the Act, clearly signifies that dishonour of a cheque per se would not bring the drawer of the dishonoured cheque within the mischief of sub-section (1) of section 138. There must have arisen a cause of action for taking cognizance under clause (1) of section 141 of the Act. Such cause of action arises upon failure of the drawer of cheque to make payment of "the amount of money", within 30 days of receiving the notice demanding payment of the amount under the dishonoured cheque and not within 30 days of dishonour of a cheque. Nurun Nabi vs Md Abu Taher Khan 62 DLR 317.
Section 138(1)(c)-Section 141(1)(b)- Cause of action-Complaint petition-Since, in the demand notice the total amount of the 3(three) cheques amounting to Taka 12,84,600 has been demanded and the drawer of the cheque having failed to make payment of the "said amount of money" within 30 days, only one cause of action has arisen and, legally, for one cause of action there should be one complaint petition, which has exactly been done in the impugned proceeding Nurun Nabi vs Md Abu Taher Khan 62 DLR 317
Section 138(3)-Sub-section (3) of section 138 gives additional authority to the civil Court to satisfy the complainant if any other grievances is found to be left out. Khalilur Rahman being dead his heirs Mrs Nazma Begum vs Md Habibullah 57 DLR 603.
Section 138-On a reading of the petition of complaint it is difficult to hold that there is any legal bar or the continuation of the proceeding will amount to an abuse of the process of the Court. The proposition of law is by now well settled that on the basis of the defence plea or materials, the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial. Nurul Huda (Md) vs State, 69 DLR 486
Section 138-Notice under section 138 is required to be served upon "the drawer" of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. Shahidul Alam @ S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-The person who writes a cheque or draft instructs the drawer to pay someone else. The company is the "drawer" of the cheque. The wordings as used in section 138 is very clear to make only the "drawer" liable and thus, leaves no room for any doubt or ambiguity. Shahidul Alam @S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-Since company is a juristic person, it would be managed by living persons who guided the act of such a juristic person to commit such a glaring default and hence, should be held respon- sible. Shahidul Alam @S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-The Managing Director being the chief executive of the company his knowledge may be deemed to be the knowledge of the company and the directors as well. Shahidul Alam @ S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-A single notice of demand issued to the Managing Director of the company will henceforth, be considered to have been issued to the directors as well and the liability of directors can arise on the basis of such notice. Shahidul Alam @ S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-Since the cheque in question had been issued by the Company as drawer, it constitutes single cause of action and there cannot be any question of splitting up of the cause of action where the accused No. 2 remains absconding and the law does not contemplate separate notice to be given to every director. Shahidul Alam @S Alam vs Dr Jahid Hossain Prodhan, 69 DLR 547
Section 138-The cheque was drawn some time in 2004 and it was presented in the Bank in the month of September, 2007 i.e. beyond the period of six months from the date on which it was drawn. A cheque receiving in the year 2004, filling up the various columns later on, at the sweet will of the complainant, if presented in the Bank after a long gap of 3/4 years, undoubtedly the same is a fraud upon the drawer of the cheque and if Court allow to continue such practice, that would be sheer indulgence to the creditors to be more oppressive to the debtors. Mohammad Ali Fatik vs State, 66 DLR 228
Section 138-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 Act. Dr Shyamal Baidya vs Islami Bank Bangla- desh Ltd, 66 DLR 547
Section 138-Legislature do not intent to serve notice one after another, in fact any one form therein is enough to serve the notice if it is found to be served properly as per law, in the premises if the notice returned unserved when it is served through registered post it is enough, and to be held as good service and thus it is not the legislative mandate to publish the notice in the daily news paper again for drawing attention to the drawer of the cheque. Ferdous Khan (Md) vs State, 68 DLR 334
Section 138-The accused is at liberty to take his defense plea in the trial and to produce supporting evidence in accordance with law. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209
Section 138-Since the criminal proceeding can be proceeded indepen- dently of the civil suit, there is no bar to proceed with the criminal proceedings. Abu Sayeed Chowdhury vs State, 68 DLR 169
Section 138-When the cheque was dishonoured by the bank on the ground of 'insufficiency of fund' in the respondent's account, a proceeding under section 138 of the Act cannot be frustrated merely on a technical ground. Hasan vs State, 68 DLR 225
Section 138-Cheque, which is otherwise complete except the date, will be treated as an inchoate document handed over to the payee with implied authority (unless an express authority is annexed) to write the date on the cheque. It is the choice and decision of the drawer of a cheque to hand over a date, post-dated or undated cheque to the payee. He (drawer) cannot subsequently come with the plea that an undated or post dated cheque handed over to the payee. In such case he is stopped by his conduct, called estoppels by conduct, and cannot be allowed to deny his obligation only on the excuse that an undated cheque was given to the payee. Ahmad Ullah vs Md Younus, 68 DLR 228
Section 138-The offence is not deemed to have been committed against the State. The proceeding is initiated by the 'payee', of a 'holder in due course', who has proprietary right and interest in the property of the dishonoured cheque. The State is not a necessary party, though it may be a proper party in such a case. NI Act case is unlike a case filed under Penal Code etc. In a case under NI Act, cost may be awarded to the aggrieved party for causing financial hardship. Leading a person or a family to the verge of ruination, for harass- ment and inflicting mental agony on frivolous grounds or by resorting to dilatory tactics or on issues of law already settled by the Appellate Division, i.e. when the accused-petitioner does not come in clean hands for seeking justice, but with collateral purpose. Harun-or-Rashid vs State, 68 DLR 535
Sections 138 and 140-Sections 138 and 140 of the Act do not make the directors principal offenders but accessories before the fact or liable vicariously. It is the company which is the principal offender, which has indeed committed the offence by issuing the cheques that were bounced, and hence question of choice is out of context. (PER AHM SHAMSUDDIN CHOUDHURY, J DISSCUSTING) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Sections 138 and 140-Prosecution minus the company was not maintainable, I find no necessity to consider other grounds the appellants/ leave petitioners have aired. So, the issue before me is very narrow indeed, but the flare and the dimension of it is too extensive and pervasive. Eusof Babu (Md) vs State, 68 DLR (AD) 298
Sections 138 and 140-The difference between sections 138 and 140 is that in respect of section 138 the offence is committed by human being that is to say, natural person and in section 140 though the expression "the person" is used which is qualified by a company which means "any body corporate and includes a firm of other association of individuals" which is a juristic person or not. It can be prosecuted for the offence under section 138. (PER SK SINHA, CJ MAJORITY) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Sections 138 and 140-The purport and scope of section 140 does not lay down any requirement that in the eventuality of an offence under section 138, the directors must individually be issued separate notices under section 138. Shahidul Alam @S Alam vs Dr Jahid Hossain Prodhan. 69 DLR 547
Sections 138 & 140 Petitioner was Managing Director of the Company at the time of offence committed and all acts are committed or done within his knowledge. He is responsible for the conduct of the business of the company and in such situation when the Managing Director of the Company is made party, there is no necessity for making the Company a party. Younus-uz-zaman (Badal) vs State, 66 DLR 249
Section 138(1)-Service of notice-If a notice is issued upon the Managing Director of the company who is in-charge of the affairs of the Company and signed the cheque on behalf of the company, the service of notice upon the Managing Director is sufficient to infer that the company has received the notice. This will fasten the company as well as the commis- sion of the offence. This is because the Managing Director being the chief executive of the company his knowledge may be deemed to be the knowledge of the company. (PER SK SINHA, CJ MAJORITY) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 138(1)-The "account payee cheque" mentioned in the complaint- petition has not lost it's character as negotiable instrument, the same can be easily brought within the mischief of "any cheque" mentioned in section 138(1) of the Act because cheque includes "account payee cheque". Mohammad Ali vs State, 64 DLR 426
Section 138(1)-Section 138(1) empowers the trial Court to punish with imprisonment for a maximum period of one year, or with fine which may extend to thrice the amount of the cheque or both. The powers given to the Court is discretionary. The language used in the section is not such that the Court must impose fine thrice the amount of the cheque. The legislature has left the matter to the discretion of the trial Court while awarding the sentence of imprisonment and fine. Shahidur Rahman Khadem vs State, 64 DLR (AD) 103
Section 138(1)-While the main part of section 138(1) of the Act provides the definition of an offence, identity of the offender and the quantum of punishment, its proviso sets out three conditions for application of the main provision. Aleya vs State, 70 DLR 303
Section 138(1)-If a drawer of the cheque is allowed to escape his liability under section 138(1) of the Act, on any frivolous ground or on mere technicality then a lot of payee or beneficiary of the cheques and the financial institutions and the Bank will be at the verge of ruination and the resultant havoc in the transactions, done in ordinary course since long, based on cheques are bound to erode the prevailing practices. If the fraud and deception are allowed to function freely in the economic system and various economic transaction and the fraud and cheaters are allowed to let go with impunity the financial institutions as well as the individual payees will be ruined. Ahmad Ullah vs Md Younus, 68 DLR 228
Section 138(1) read with Section 141(b)-While failure to comply with any one of the three conditions set out in clauses (a) to (c) of the proviso to section 138(1) of the Act shall result in non- commission of the offence inscribed in the main part of section 138(1) of the Act, non- compliance of the condition stipulated in section 141(b) of the Act shall make the Magistrate incompetent to take cognizance of the offence. Aleya vs State, 70 DLR 303
Section 138(1)(b) and (c)-While, in practice, mostly the date of dishonouring of the cheque and the date of receiving information from the bank about the dishonouring of cheque are the same date, however, there may be cases where the payee might be notified by the bank about dishonouring the cheque on a later date. Similarly, counting of thirty days stipulated in clause (c) of the proviso to section 138(1) of the Act should be commenced from the date of receiving the notice issued by the payee and, thus, calculation of thirty days should not be counted from the date of sending the demand notice. Aleya vs State, 70 DLR 303
Section 138(b) The complainant published the legal notice through "Dainik Suprovat Bangladesh" on asking to pay the cheque's amount within 30 days but the accused petitioner failed to pay the cheque's amount and thereafter, the complainant filed the case on within the period of one month in compliance with clause (b) of section 141 of the Act. The proposition of law is by now well settled that on the basis of the defence plea or materials, the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial. Hasan Jahangir Alam vs State, 69 DLR 363
Section 138(b)(c)-Legislature has not created any absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. Prematurity shall be cured the moment the period of thirty days expires and the payment of the dishonoured cheque is not made within the said period. Zahidul Islam (Md) vs Md Kamal Hossain, 66 DLR (AD) 180
Section 138(1)(2)(3) Upon a careful reading of section 138(1)(2)(3) it appears that these provisions have been designed to compensate the disappointed holder of the cheque, where any interest of the State or its entitlement to fine has been overlooked. If it remains concluded that an offence under section 138 of the Act is compound- able, then recognition of entitlement to fine by the State sounds conflicting. Even in compoundable offences defined in the Penal Code, if those end in compromise, and the law does not raise the State between the parties compromising, as a claimant of jail for the accused or as a claimant of fine. Imposition of fine making it payable to the State cannot be encouraged. Bulbul Sharif (Md) vs State, 68 DLR 314
Section 138(2) Since sub-section (2) of section 138 make clear provision for getting the face value of the cheque by the holder of the cheque, so there should have been black and white order in the judgment otherwise it may create confusion as to the entitlement by the holder of the cheque. Muraduzzaman Polash (Md) vs State, 67 DLR 501
Section 138(1A)-Before insertion of this sub-section (1A) there was some ambiguities as regard the service of notice. To dispel such ambiguity sub-section (1A) of section 138 of the Act was inserted in order to further clarify the method of 'service' of "notice" and to fortify the earlier section 138 in respect of service of notice. This provision brings about an additional measure which the legislature in its wisdom thought it proper to be inserted by 1A and this provision, has been added to the original laws governing the field only to strengthen the procedure of service of 'notice' that existed before. Though the provisions under section 27 of the Act were there, even then the legislature further clarified this substantive issue and set it at rest once for all. Mofizur Rahman (Md) vs Bangladesh Represented by Secretary Ministry of Law, 69 DLR 402
Section 138(1A)-The provisions under challenge (1A) suggested 3 (three) methods consecutively, but all the methods are alternative method since the word 'or' appears employing a construction of making the same disjunctive and, as such, it can easily be inferred that legislature consciously did this only to further simplify the procedure in respect of service of notice. Mofizur Rahman (Md) vs Bangladesh Represented by Secretary Ministry of Law, 69 DLR 402
Section 138(1A) Service of notice under clause (b) of sub-section (1) of section 138 of the Act means any of the 3(three) modes as provided under clause (a), (b) and (c) of sub-section (1A) of section 138 of the Act. The legislature while prescribing the 3 (three) modes of service of notice has used the words "or" and thus, makes each clause disjunctive. The duty of the payee is discharged once he served notice either under clause (a) or (b) or (c) of sub section (1A) of section 138 of the Act. No where within the four corners of sub section (1A) the legislature has put burden upon the payee to further exhaust the mode of service of notice as prescribed under clause (c) of sub-section (IA) by paper publication when the drawer is found absent in his last known address. Nurul Islam vs State, 69 DLR 312
Section 138A-Right of appeal is a substantive right and it becomes a vested right when the original proceeding is initiated and this right is not defeated by the repeal of the statute conferring the right of appeal. But there are two exceptions to this rule, namely, when by a competent enact- ment, such right of appeal is taken away expressly or impliedly with retrospective effect, and when the Court or tribunal to which appeal lay at the commencement of the original proceeding stands abolished without providing another forum. A litigant has, however, no vested right to any particular forum and where a new forum is provided by the repealing Act, the right of appeal is to be exercised in the new forum. A change of law imposing any restriction on the right of appeal, in the absence of any contrary intention, will not affect the right of appeal as it stood at the commencement of the original proceeding. Parvin Akhter vs Bangladesh, 70 DLR 413
Section 140-The directors only signed the company's cheques and thereby acted as the fuel injectors in the Company's commission of the offence. Section 140 of the Act made them vicariously liable as per me decision of the larger Bench of the Indian Supreme Court. Question is not founded on the applicability of the civil law principle of non-joinder but that of the criminal jurisprudence which ordains that a criminal proceeding is non-est for aiders or abettors if the principal offender is not booked. (PER AHM SHAMSUDDIN CHOUDHURY, J DISSCUSTING) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 140-Section 140 does not contain that the prosecution of company is indisputable for the prosecution of the other categories of persons. If the company is not prosecuted, the other two categories of persons cannot, on that ground alone, escape from criminal liability. (Per SK Sinha, CJ majority) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 140-Company is a distinct personality, independent of its Directors and share-holders and it is the company who is liable for offence committed by it and that the directors who steer the affairs of the company are not liable as the principal offenders but either vicariously or as aiding or abetting agents. For this view I take in aid observations expressed in re- Sir Dinshai Petit, supra, to the effect that when a company is duly incorporated the Court should start with the presumption that it is a separate entity from the individuals. (PER AHM SHAMSUDDIN CHOUDHURY, J DISSCUSTING) Eusof Babu (Md) vs State, 68 DLR (AD) 298
Section 140-In the first part of section 140 of the Act contain the offence committed by the person, who are responsible as well as in charge of the company at the time of commission of offence, shall be deemed to be guilty. But the 2nd part of section 140 of the Act provides that any director, manager, secretary or other officer of the company would be held guilty of that offence if at that time they had active part of company as well as consent or connivance of, or is attributable to, any neglect on the part of any director. manager. secretary or other officer of the company. Mozahar Sowdagor (Md) vs State, 69 DLR 204
Section 140-The trial Court should amend the charge by incorporating a reference to 140 of the Act, with a further statement that the accused issued the cheque as an office bearer of the Company and that he is liable to be prosecuted. The accused should be allowed to produce his defense evidence in accordance with law. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209
Section 140
The prosecution should be given opportunities to prove its own case by providing sufficient evidence as to the matters of fact in dispute including receipt of notice, as such, this court cannot interfere any disputed question of fact which should be adjudicated by the trial court after obtaining evidence from the parties.
The High Court Division held that company includes any persons of the company. In the instant case, the petitioner admittedly is a director of the company names M/S Benz Industries (BD) Ltd. The case of the petitioner is not that accused petitioner was not involved in the day to day performance of the company rather he filed this miscellaneous cases under Section 561A of the Code of Criminal Procedure challenging the proceeding by the bank impleding him in the complaint cases. The High Court Division is of the view that being a director the petitioner cannot be exclude him from the liabilities of the companies, as he was responsible for company's conduct of businesses. Accordingly, the High Court Division is certain that the proceeding against the present accused-petitioner is not illegal because under Section 140 the offences of companies has been considered the persons who are in charge and responsible on behalf of the company for the conduct of business of the company accordingly, the present petitioner cannot separate himself from the offences of the company. Syed Md. Rizwanul Bari -Vs. Sonali Bank and another (Criminal) 21 ALR (HCD) 280-283
Sections 140 and 141
If for any reason the company is not prosecuted, the other persons who are in charge of the affairs of the company or in the management of the company or have knowledge about the affairs of the company can not escape from criminal liability if they are served with the notice.
The Appellate Division after approving the views and observation of the Supreme Court of India held that the infirmity of not making the company as accused which could be removed by affording the complainant to add the company M/S Modi Industries Ltd. in the case were termed as obiter dictum by the Supreme Court in India in Anil Hada V. Indian Acrylic Ltd, (2000) 1 SCC 1 and approved the views taken by Chinnappa Reddy, J. in Sheoratan Agarwal (Supra). This case is in respect of an offence under the Negotiable Instruments Act. The Indian provision is identical to our provision with the variation that section 140 of our Act corresponds to section 141 of the Indian Act. It was held in that case that if the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons who are responsible in the conduct of the business of the company, the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. The court summed up by observing that 'if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons can not, on that score alone, escape from criminal liability created through legal fiction envisaged in section 141 of the Act." Mohammad Eusof Babu and others -Vs.- Johan Provanjon Chowdhury (Criminal) 23 ALR (AD) 58
Section 141(b)
If a notice is issued upon the Managing Director of the Company who is in charge of the affairs of the Company and signed the cheque on behalf of the company, the service of notice upon the Managing Director is sufficient to infer that the company has received the notice. This will fasten the company as well for the commission of the offence. This is because the Managing Director being the chief executive of the company his knowledge may be deemed to be the knowledge of the company. Mohammad Eusof Babu and others -Vs.- Johan Provanjon Chowdhury (Criminal) 23 ALR (AD) 58
Section 141
Neither the prosecution nor the defence produced any documentary evidence to prove or disprove consideration and business transaction between the parties. PW1 (authorised agent of the complainant company) had seen the accused for the first time in the Court. He knows nothing about the business transactions between the par- ties which is the foundation of the prosecution case. PW1, in fact, does not possess any knowledge, let alone due knowledge, regarding the alleged business transactions. The prosecution, from filing of the case till end of the trial, conducted case in a shoddy and clumsy manner. The judgment of conviction cannot be sustained for the reasons discussed above.
The High Court Division observed that reverting back to the cases in hand, neither the prosecution nor the defence produced any documentary evidence to prove or disprove consideration and business transaction between the parties. PW1 (authorised agent of the complainant company) had seen the accused for the first time in the Court. He knows nothing about the business transactions between the parties which is the foundation of the prosecution case. PW1, in fact, does not possess any knowledge, let alone due knowledge, regarding the alleged business transactions. The defence case, on the other hand, as narrated by DW1 and DW2 that the accused refused to do business with the complainant without agreement, that he signed advanced cheques and went abroad, that the General Manager (GM) of his business enterprise used the said cheques and did business with the complainant of which the accused was not aware of, that the accused filed criminal case against the said GM. in connection of which he is in jail custody-could not be disproved by the prosecution. Applying the test of 'preponderance of probability'/ 'probable defence', this Court is of the view that the defence has successfully rebutted the statutory presumption of consideration. Thus, the onus to prove, standard being "beyond reasonable doubt', that the cheques were drawn for consideration, shifted to the prosecution, but it failed to discharge the onus and the foundation of the prosecution case (business transactions and passing of consideration) has fallen apart. Hence, the inevitable conclusion is that in spite of facts that the cheques in question were signed by the accused and the complainant company was the payee, those were drawn without consideration. In the result, both the appeals are allowed. Md. Ershad Ali @ Md. Ershad Ullah -Vs.- The State and another (Criminal) 21 ALR (HCD) 49-54