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Cheque bounced for insufficient fund constitutes criminal liability

.
High Court Division 
 [Criminal]
Present:
Mr. Justice Syed Mahmud Hossain
And
Mr. Justice Md. Nazrul Islam Talukder
Criminal Miscellaneous Case
No.26058 of 2009
Md. Sirajul Haque......Petitioner
- Versus-
The State and another     .... Opposite parties
Mr. M.G. Mahmud (Shaheen),
Advocate.     . ... For the Petitioner
Mr. Kazi M. Ejarul Haque, D.A.G with Mr. Md. Shafquat Hussain, A.A.G .
... . For the State-Opposite Party No.1
Mr. Md. Aminul Islam, Advocate.
.. .. For the Opposite Party No.2.
Heard On: 26.01 .2011
Judgment On: 27.01.2011
Code of Criminal Procedure, 1898 Section-561 A read with Negotiable Instrument Act, 1881 (As amended) Section -138
Whether Criminal proceeding fail for defect of parties
That the petitioner did not issue the cheque in his personal capacity; rather the cheque was allegedly issued by the petitioner on behalf of the company but the company has not been made accused in the instant case and as such, the impugned proceeding filed by the complainant is not maintainable as contended by the learned counsel for the petitioner -
Held; In the Code of Criminal Procedure, there is no provision for defect of parties and a criminal proceeding cannot fail for defect of parties like the civil suit. A criminal case may be filed against the person or persons who commit an act of criminal offence. Under the circumstances, the proceeding of the present case is not liable to be quashed for not making the company as accused in the instant case. [Para-16]
Section-138
Whether crossed "account Payee" cheque is a Negotiable instrument
Held; once a cheque becomes "account payee", it ceases to have the character of negotiability but it never ceases to have the character of negotiable instrument. Accordingly, we are of the view that all cheques are negotiable instruments, but all cheques are not negotiable and a crossed "account payee" cheque is always a negotiable instrument, but it is not a negotiable one -It is manifestly clear to list that the crossed "account payee" cheque issued by the accused petitioner is a Negotiable Instrument and bouncing of the same for insufficient fund is an act of criminal liability which may come within an offence under section 138 of the Negotiable Instrument Act. [Paras-18 & 19]

Judgment
Mr. Md. Nazrul Islam Talukder, J,:- This Rule, at the instance of the accused petitioner was issued calling upon the opposite-parties to show cause as to why the proceeding of Sessions Case No. 1838 of 2007 corresponding to C.R, Case No, 542 of 2007 under section 138 of the Negotiable instrument Act 1881, now pending in the Court of Joint Metropolitan Sessions Judge, 1st Court, Dhaka should not be quashed : and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this Rule may be, briefly, stated as follows: On 12.3.2007, opposite party No.2 as complainant filed a petition of complaint being C.R Case No.542 of 2007 under section 138 of the Negotiable Instrument Act, 1881 before the Chief Metropolitan Magistrate, Dhaka against the accused petitioner and another alleging, inter-alia, that on 05.01.2007, the accused-petitioner as a Chairman and another accused as a Managing Director of S. Co. Steel Limited issued a cheque being No. CDJ 0644692 for Tk. 35,00000/=(Thirty Five Lac only) in favour of opposite party No.2. On receipt of the cheque, opposite party No.2 presented the said cheque before the concerned Jamuna Bank Limited's Dilkusha Branch, Dhaka on 28.1.2007 for encashment; but that cheque bounced for insufficient fund. The complainant, thereafter, issued a legal notice upon the accused-petitioner and another on 08.2.2007 but they did not intentionally, receive notice and make any payment against the cheque issued by them. Hence, opposite party No. 2 filed this petition of complaint against the petitioner and another under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act) before the Chief Metropolitan Magistrate, Dhaka on 12.3.2007 after complying with the provisions of law required under section 138 and 141 of the aforesaid Act.
3. After filing the petition of complaint, the complainant was examined under section 200 of the Code of Criminal Procedure and his statement was recorded accordingly. The learned Chief Metropolitan Magistrate took cognizance of the offence against the petitioner and another under section 138 of the Act, on 12.3.2007.
4. After issuance of the notice, the petitioner voluntarily surrendered before the Chief Metropolitan Magistrate, Dhaka and obtained bail. Subsequently, the aforesaid case was transferred to the Court of Metropolitan Sessions Judge, Dhaka and renumbered as Metropolitan Sessions Case No. 1838 of 2007 which was subsequently transferred to the court of Metropolitan Joint Sessions Judge, 5th Court, Dhaka for trial.
5. At the time of commencement of the trial, learned Judge of the trial court framed charge against the petitioner and another under section 138 of the Act on 20.04.2008.
6. Being aggrieved by the impugned proceeding, the petitioner has approached this court with an application under section 561 A of the Code of Criminal Procedure and obtained this Rule.
7. At the very outset, Mr. M.G. Mahmud (Shaheen), learned Advocate appearing for the petitioner, submits that the alleged cheque is a crossed "account payee" cheque which is not negotiable instrument within the meaning of section 123A of the Act and as such, the impugned proceeding is not maintainable. He next submits that the petition of complaint has been filed against the petitioner and another under section 138 of the Act, but the fact remains that the aforesaid crossed account payee" cheque was issued by the Company. He further submits that since the Company has not been made accused in the instant proceeding, the impugned proceeding is not maintainable in view of section 140 of the Negotiable Instrument Act, 1881. He emphatically submits that though the complainant served legal notice upon the petitioner on 8.2.2007, the notice was not received by the petitioner and that the petition of complaint does not disclose any offence against the petitioner under section 138 of the Act, 1881 and as such the impugned proceeding should be quashed after making the Rule absolute.
8. Mr. Md. Aminul Islam, learned Advocate appearing on behalf of opposite party No.2, submits that though the cheque issued by the petitioner is an crossed "account payee" cheque, the same is a Negotiable Instrument, in view of sections 13, 14, 123A and 138 of the Act. He next submits that the present petitioner and another have been made accused in the instant case for their criminal liability and that in a criminal proceeding, the "question of defect of parties does not arise and as such, non-impeaching the company as accused in the instant case does not make the prosecution case not maintainable. He lastly submits that under section 138 of the Act, all cheques including "bearer" or crossed "account payee" cheque are the negotiable instruments but the crossed "account payee" cheque changes the mode and nature of payment between the drawee and payee and as such, the impugned proceeding is not barred by section l23A of the Negotiable Instrument Act, 1881 and as such the impugned proceeding should not be quashed and the Rule should be discharged.
9. On the other hand, Mr. Kazi M. Ejarul Haque, learned Deputy Attorney General with Mr. Md. Shafquat Hussain, learned Assistant Attorney General appearing on behalf of the State, submits that t