May 25, 2013 | 03:32 AM (BD Time)
25 May, 2013 Saturday
Counting due date of payment of dishonoured cheque
High Court Division
(Criminal Revisional Jurisdiction)
AKM Asaduzzaman J
Md Rezaul Hasan
MR Hasan) J
December 10th, 2009
Nurun Nabi (Md)
Md Abu Taher Khan and
Negotiable Instruments Act (XXVI of 188/) Section 138(1) clause c
Section 141(1) clause 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 .
Section 138(1) clause Section 141(1) clause 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 drawl'" 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.
As such, we do not find any illegality or any abuse of the process of the Court in issuing a single notice for 3(three) cheques, as because notice has been served and the demand has been made within the stipulated period of time Zahid Hossain vs State 61 DLR 386 and Stalion Shox (Pvt) vs Auto Teisions (rvt) Ltd (1994) 79 Company Cases 809 (Delnhi) ref.
Dr Rafiqur Rahman. Senior Advocate-For the Petitioner.
SM Shahjahan, with Md Shafiqur Rahman, Advocates-For Opposite Party No.1.
Md Rezaul Hasan J: This application under section 561 A of the Code of Criminal Procedure (CrPC), has been filed seeking quashment of the proceedings of Metropolitan Sessions Case No. 793 of 2008 under section 138 of the Negotiable Instruments Act 1881, arising out of CR Case No. 1309 of 2007, now pending before the Court of Joint Metropolitan Sessions Judge, Court No.5, Dhaka.
2. The case of the complainant-opposite party No. 1, in short, is that the complainant has filed a petition of complaint before the Chief Metropolitan Magistrate, Dhaka against the petitioner, on 3-6-2007, under section 138 of the Negotiable Instruments Act, 1881 (The NI Act) stating that, the complainant is an established businessman of rod and cement.
The accused petitioner is the proprietor of Messrs Global International and used to purchase rod and cement from the complainant and in the course of business they got acquainted with each other. Taking advantage of this acquaintance, the accused had been able to earn trust of the complainant. In this way the accused petitioner, on different dates, took on credit rod and cement from the complainant worth Taka 13,74,429 and to discharge the said liability the accused-petitioner had drawn 3 cheques numbering 2172956, 2172957 and 2172958 dated 19-12-2006, 24-12-2006 and 30-3-2007 respectively, in favour of the complainant, for an amount of Taka 12,84,600 in total. The cheques were presented for encashment on different dates, but the same were dishonoured for insufficient funds and the fact of repeated dishonour of the cheques were duly informed to the accused-petitioner. The cheques were lastly dishonoured on 3-4-2007 and 15-4-2007. Hence, the complainant had issued, upon the accused, a demand notice dated 19-4-2007, under section 138 of the NI Act, and demanded payment of Taka 12,84,600, being the amount due under the said 3(three) cheques, within 30 days of the receipt of the demand notice, hence the complainant filed on 3-6-2007, a petition under section 138 of the NI Act.
3. Upon receiving the complaint petition the Chief Metropolitan Magistrate, Dhaka took cognizance of the case on 3-6-2007, against the petitioner, under section 138 of the NI Act. Thereafter the accused petitioner surrendered on 19-12-2007 before the learned Metropolitan Magistrate, Dhaka, and obtained bail.
4. The case was transmitted to the court learned Metropolitan Sessions Judge. Dhaka wherein it has been registered as Sessions Case No. 790 of 2008 and the case was ultimately sent to the learned Joint Metropolitan Sessions Judge, 5th Court Dhaka for trial.
5. The said transferee Court has framed a charge against the accused-petitioner under sections 138 and 141, Negotiable Instruments Act fixing 11-8-2008 for hearing. At this stage the accused-petitioner has moved the above mentioned petition under section 561 A of the Code of Criminal Procedure and obtained the instant Rule.
6. Dr Rafiqur Rahman, the learned Senilv Counsel, appearing for the accused-petitioner mainly submits that the complainant having served single notice dated 19-4-2007 for 3(three) cheques, hence, the proceedings initiated thereupon is not sustainable in law and that the continuation of the said proceedings under section 138 of the Negotiable Instruments Act is a sheer abuse of the process the Court. In support of his contention, the learned Counsel has cited before us an unreported decision given by another bench of the High Court Division' in Criminal Miscellaneous Case No. 15742 of 2005.
7. Mr SM Shahjahan along with Mr Shafiqur Rahman, learned Advocates appearing ror the opposite party No. I drawing our attention to the complaint petition, annexed as Annexure-"A" to the petition under section 561A, mainly submits that there is no legal bar under section 138 of the Negotiable Instruments Act i
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