Debt of husband is not wife’s liability

High Court Division (Criminal Miscellaneous Jurisdiction) Moyeenul Islam Chowdhury J Md Nazrul Islam Talukder J Judgment May 12th, 2011 Shahnaj Begum Munni …….. ………..Petitioner vs State and another. ………….. ………….Opposite-Parties Negotiable Instruments Act (XXVI of 1881) Sections 7 and 138(1) From a bare reading of Section 138(1) of the Act, it is manifestly 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. .. .... (8) Section 138(1) The account is not maintained in the name of the accused-petitioner; rather it is maintained in the name of her husband. 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 ………(8) Code of Criminal Procedure (V of 1898) Section 561A Negotiable Instruments Act (XXVI of 1881) Section 138(1) The cheque was issued to discharge, either in whole or in part, a legally enforceable debt or liability. The accused-petitioner has 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. . ..... (10) Negotiable Instruments Act (XXVI of 1881) Section 138(3) Penal Code (XLV of 1860) Sections 415 and 420 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. . ..... ( 11) Md. Khurshid Alam Khan with Rezaul Karim, Advocates - For the Petitioner: Sirajuddin Ahmed, Advocate - For the Complainant Opposite-Party No.2. Judgment Moyeenul Islam Chowdhury J: On an application under Section 561 A of the Code of Criminal Procedure, 1898 filed by the petitioner, this Rule was issued calling upon the opposite-parties to show cause as to why the proceedings of the Sessions Case No. 1832 of 2009 arising out of CR Case No. 552 of 2008 (Panchlaish Zone) under Section 138 of the Negotiable Instruments Act, 1881, now pending in the Court of the Metropolitan Sessions Judge, Chittagong should not be quashed and/or such other or further order or orders passed as to this Court may seen fit and proper. 2. Facts relevant for the purpose of disposal of the Rule may be briefly stated as follows: The complainant-opposite-party No.2 lodged a petition of complaint with the Court of the Chief Metropolitan Magistrate, Chittagong on the allegations, inter alia, that the complainant and the husband of the accused-petitioner were very friendly with each other and at one stage, the husband of the accused-petitioner took a sum of Tk. 30 lakh from the complainant by way of loan in two instalments on the stipulation that he would repay the loan within a period of 6(six) months. However, on behalf of the husband of the accused-petitioner, she (accused-petitioner) provided the complainant with a cheque of Tk. 30 lakh bearing No. 6669851 dated 02-4-2009 for repayment of the loan. The cheque was presented for encashment with the Janata Bank Ltd, Bayezid Bostami Road Branch, Chittagong on the self-same date (02-4-2009); but it was dishonoured on the ground that the drawer's signature differed. At a subsequent stage as per the assurance of the accused-petitioner, the complainant presented the cheque to the Janata Bank again for encashment on 08-4-2009 and this time too, the cheque was dishonoured on the score of stopping of payment by the drawer. Anyway, on 22-4-2009 the complainant through his lawyer gave a legal notice to the accused-petitioner by registered post with A/D which was received by her on 30-4-2009, but she did not repay the amount thus committing an offence punishable under Section 138 of the Negotiable Instruments Act. 3. At the outset, Mr. Md. Khurshid Alam Khan, learned Advocate appearing on behalf of the accused-petitioner, submits that as per Annexure 'D' to the petition, it is crystal clear that the account No. 026112011913 with Al-Arafah Islami Bank Ltd, O. R. Nizam Road Branch, Chittagong is maintained in the name of the husband of the accused-petitioner, that is to say, Mohammed Zahedul Islam and since the account with Al-Arafah Islami Bank Ltd. is not maintained by the accused-petitioner as contemplated by section 138(1) of the Negotiable Instruments Act, the complainant cannot proceed with the case pending in the Court below and that being so, the proceedings of the case are liable to be quashed. 4. Mr. Md. Khurshid Alam Khan, however, candidly concedes that in the facts and circumstances of the case, there may be some ingredients of cheating as defined in section 415 of the Penal Code which is punishable under section 420 of the said Code; but from legalistic point of view, the proceedings of the case pending in the Court below are an abuse of the process of the Court. 5. On the other hand, Mr. Sirajuddin Ahmed, learned Advocate appearing on behalf of the complainant-opposite-party No.2. fails to make any dent in the above submissions of Mr. Md. Khurshid Alam Khan; but he submits that in the facts and circumstances of the case, the accused-petitioner has incurred the criminal liability of cheating the complainant-opposite-party No.2. 6. We have heard Mr. Md. Khurshid Alam Khan and Mr.

19 June, 2013 Wednesday

Debt of husband is not wife’s liability