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Trial Court to decide disputed questions of facts upon taking evidence

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(Criminal Miscellaneous Jurisdiction)
Salma Masud Chowdhury and Md. Rezaul Hasan, JJ
A.T. M. Salim Chowdhury
V.
The State
Disputed questions of facts are to be decided upon taking evidence by the trial court.
It is true that, in the petition of complainant neither the date of sending the notice nor the date of receiving the notice has been stated. We have also taken into notice that no form has been prescribed in the Negotiable Instrument Act, 1881, describing the particulars to be contained in a complaint petition to be filed under Section 138 of the said Act. In the absence of any provision under Section 138 or 141 of the said Act, 1881, prescribing as to what particulars should be contained in a petition of complaint, we are of the considered view, that mere non-mentioning of the date of issuing of the notice under Section 138 (1) (b) of the Act or non-mentioning of the date of receipt of such notice would not amount to any violation of the provisions of Section 138 or 141 of the Act, in as much the date of sending and receiving of notice can be agitated and proved or disprove at the time of trial by the party upon whom the onus would lie. (Para-11)
It has been held by the apex court in the case reported in 60 DLR (AD) (2008) 195 that, since the date of receipt is a question of fact to be ascertained at the time of trial nondisclosure 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. Similarly, it has been held in the case reported in 60 DLR (2008), 677 that, whether the accused received the legal notice or not is merely a disputed question of fact and the same should be decided in trial. It has also been observed in that case that the plea of accused is nothing but a defence plea.  (Para-l2)
Mr. Munshi Moniruzzaman, Adv. For the petitioner
Mr. Zoglul Haider Afric, Adv. For the opposite party No.1.
Judgment delivered on 13 July, 2010.
Judgment
Md. Rezaul Hasan, J: This rule under Section 561 A of the Code of Criminal Procedure (the Code) has been issued at the instance of the accused-petitioner calling upon the opposite parties to show cause as to why the proceedings of Sessions Case No. 458 of 2008 arising out of C.R. Case No. 763 of 2008 under section 138 of the Negotiable Instrument Act, 1881; now pending in the Court of Sessions Judge, Sylhet, should not be quashed and/or such other or further order or orders be passed as to this Court may seem fit and proper.
2. The short facts leading to filing of this application under section 561A of the Code are that, one Abdul Jalil Bepari, the complainant-opposite party No.1. in this matter, filed a petition of complaint before the Court of Chief Judicial Magistrate, Sylhet, against the accused-petitioner alleging, amongst other, that the accused-petitioner owed an amount of Tk. 9,00,000/- to the petitioner and his partners. The accused petitioner paid Tk. 50,000/- in cash and in order to repay the balance amount the accused-petitioner issued a cheque dated 09.10.2007 for Tk. 8,50,000/- in favour of the complaint, drawn upon Islami Bank Bangladesh Ltd., Taltola Branch, Sylhet. The complainant placed the said cheque for encashment, but the said cheque was bounced on 08.03.2008 for insufficiency of fund.
Further case of the complainant is that he has served a notice upon the accused, but the accused did not pay the amount due under the cheque within the time specified in the said notice, SO he has filed this petition of complaint under section 138 of the Negotiable Instrument Act, 1881 (N. 1. Act).
3. The Chief Judicial Magistrate, having examined the complaint, took cognizance against the accused-petitioner under section 138 of the Negotiable Instrument Act, where upon C.R. Case No. 763 of 2008 has been registered; and issued summons. The accused-petitioner surrendered before the court of
Magistrate and he was enlarged on bail.
4. It further appears from the statements made in the petition filed under section 561A that, thereafter the case being ready for" trial, the same was sent for trial to the Court of learned Sessions Judge, Sylhet, wherein it has been registered as Sessions Case No. 458 of 2008. The case was later on transferred to the court of Joint Sessions Judge, Sylhet for disposal. The accused-petitioner while enjoying the bail granted by the Magistrate filed an application for bail, before the Sessions Court, Sylhet, which was fixed on 14.09.2008, but the learned Judge on date did not preside the Court, as such previous order prevailed and the petitioner continued to enjoy his bail privilege. At this stage, the accused-petitioner moved this application under 561A on 13.10.2008, as a motion, and obtained the instant rule as well as this honorable court was also pleased to stay the impugned proceedings.
5. The complaint-opposite party No.1 filed counter affidavit denying all material allegations made in the petition filed under section 561 A and contending, inter alia, that this petition is not maintainable is law.
6. The learned Advocate Mr. Munshi Moniruzzaman, appearing on behalf of the accused-petitioner, after placing the petition filed under section 561 A along with the document annexed their with mainly submits that, a mere perusal of the petition of complaint would show that neither the date of sending the notice nor the date of receiving the notice has been disclosed in the petition of complaint. As such the provisions of section 138 and 141 of the Negotiable Instrument Act was not complied with, before filing the complaint petition, hence the initiation and continuation of the impugned proceeding' amounts to an abuse of the process of the court and the same is liable to be quashed.
7. The learned Advocate Mr. Zoglul Haider Afric, appearing on behalf of the complaint-opposite party No.1, drawing our attention to the counter affidavit filed on behalf of the complaint-opposite party No.1 alongwith other materials on record, contends that the grounds as taken in the petition filed under section 561 A as to whether the notice has been served and as to non-mentioning the date of service of the notice or the date of receiving of the notice are all questions of fact and that the complainant petitioner, as of right, is entitled to adduce evidence to prove these facts at the time of trial. Accordingly, he submits that the complaint petition is not liable to be quashed on any of these grounds. In support of his contention, the learned Advocate has cited before us the case of Nizamuddin Mahmood Vs. Abdul Hamid Bhuiyan and another, reported in 60 DLR (AD) (2008) 195 the case of Shamsul Alam Vs. State, reported in 60 DLR (2008) 677 and accordingly prayed for discharging the rule.
8. The points for determination before us is whether the initiation and continuation of the impugned proceeding amounts to an abuse of the process of the court and is liable to be quashed on that ground.
9. We have heard the learned Advocates, perused the petition filed under 561 A of the Code along with the annexures as well as the counter affidavit filed on behalf of the complainant-opposite party No.1.
10. It appears from a mere perusal of the petition of complaint filed under section 138 of the Negotiable Instrument Act, that the complainant, in his petition of complaint has stated that the accused-petitioner' owed an amount of Tk. 9,00,000/-to the complainant and his partners.
The accused paid Tk. 50,000/- in cash and to repay the balance amount he has issued a cheque dated 09.10.2007 for Tk. 8,50,000/- in favour of the complainant (payee). The said cheque was placed for encashment before the concerned bank, but was dishonored, on 08.03.2008, for insuffic