May 24, 2013 | 12:17 PM (BD Time)
24 May, 2013 Friday
Offence creation on returned unpaid cheque
High Court Division
(Criminal Miscellaneous Jurisdiction)
Siddiqur Rahman Miah J
Farah Mahbub J
March 11th, 2010
Negotiable Instruments Act (XXVI of 1881) Sections 138 and 141
Code of Criminal Procedure (V of 1898) Sections 177, 183 & 561A
The first occurrence of talk was held at Cox's Bazar and the agreement was made between the parties at Cox's Bazar and the cheque was given at Cox's Bazar and dishonoured at Dhaka. Under such circumstances this case could be tried either by learned Sessions Judge Dhaka or by learned Sessions Judge, Cox's Bazar.
The offence under Section 138 of the Act can be completed with the concentration of the number of facts (i) First occurrence and consequently agreement was made between the parties (ii) drawing of the cheque, (iii) presentation of the cheque, (iv) returning of the cheque unpaid by the drawee bank, (v) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (vi) failure of the drawer to make payment within specified time of the receipt of notice. As per Section 177 and 183 of the Code of Criminal Procedure it the aforesaid six different acts were done in six different localities, Any of the Courts exercising jurisdiction in one of the six local areas can become the place of trial for the offence under section 138 of the Act and the complainant can choose any one of the Courts in whose jurisdiction any of the 6 components of the said offence was done. The first occurrence of talk and agreement loan took place at Cox's Bazar and as such the learned Sessions Judge, Cox's Bazar has jurisdiction to try the case and thus on the ground of the continuation of the proceeding at Cox's Bazar, this proceeding cannot be quashed. ....(25 & 27)
Master Osman Goni vs State 15 BLD 501; Abdul Alim vs Biswajit Dey and another 59 DLR 236 and Ali Akkas vs Enayet Hossain and others. 17 BLD (AD) 44 rel.
Md Abdul Jalil, Advocate--For the Petitioner.
Sakila Rowshan Deputy Attorney-General with Abdul Rakib Assistant Attorney-General-For the State.
Siddiqur Rahman Miah J : This rule on an application filed under Section 561A of the Code of Criminal Procedure was issued calling upon the opposite party to show cause as to why the proceedings in ST case No.192 of 2008 arising out of CR Case No. 36 of 2007 under Section 134 of the Negotiable Instruments Act 1881 now pending in the Court of the learned Sessions Judge. Cox's Bazar should not be quashed.
2. One Ali Hasan Chowdhury as complainant filed a CR Case being 36 of 2007 under Section 138 of the Negotiable Instruments Act, before the cognizance Court No.1, Cox's Bazar against the petitioner alleging, inter alia, that the complainant took rent four Cargo Biman for fix months from the accused and paid Taka 83,00,000 (eighthly three lakhs) only to the accused: that the accused did not supply Cargo Biman in time: that for the refund of money with compensation, the accused issued a cheque No. me/PR 3339283 account No. 1110002399 of South-East Bank Ltd. New Elephant Road Dhaka on 25-6-2005 of Taka 88,00,000 (eighty eight lakhs) : that the cheque was placed before the concerned bank on 3-7-2005 which was dishonoured due to "insufficient found": that after informing the matter to the accused, against issued cheque No. me/PR 3339285 of 90,32,000 (ninety lakh thirty two thousand) only of South-East Bank Ltd New Elephant, Dhaka on 25-8-2005 and that the complainant presented the cheque in the concerned bank on 25-8-2005 which was dishonoured due to insufficient fund". Thereafter the accused paid 25,00,000 (Twenty five lakhs) only in cash and issued a cheque on 25-10-2005 being cheque No me/PR 3339287 of South-East Bank Ltd New Elephant Road, Dhaka for taka 66,98,000 only. The complainant presented the cheque before the concerned bank on 24-11-2005 which was dishonoured due to "insufficient fund". After informing the matter to the accused, the accused again issued a cheque No. me/PR 3339289 of South-East Bank Ltd. New Elephant Road, Dhaka on 20-9-2006 of Taka 70,00,000 only. The complainant present the said cheque before the concerned bank of 25-9-2006, 12-10-2006, 12-10-2006 and lastly on 23-11-2006 but the same was dishonoured due to "insufficient fund."
3. It is further stated that the complainant issued legal notice to the accused on 14-12-2006 which was received on 20-12-2006. But the accused did not take any step to pay the cheque money. In this circumstances the complainant filed this case against the accused petitioner.
4. The cognizance Court examined the complainant and recorded his statement under Section 200 of the Code of Criminal Procedure and took cognizance of the offence under Section 138 of the Negotiable Instruments Act and also issued summons against the petitioner on 4-2-2008.
5. The case record was transferred to the Sessions Judge and the Sessions Judge recorded the case on 17-6-2008 and took cognizance on 25-7-2008. The accused petitioner surrendered before the Sessions Judge on 22-7-2008 and obtained bail.
6. Being aggrieved by and dissatisfied with the ST case No.l92 of 2008 arising out of CR case No. 36 of 2007 under Section 138 of the Negotiable Instruments Act, the petitioner preferred this petition before this Court and obtained the Rule.
7. Mr Abdu1 Jalil, the learned Advocate for the petitioner submits that accordingly to the complaint petition, the Global Air Link made an agreement with Air Parabad Ltd. To take rent of four cargo Biman of six months that the Air link paid Taka 83,00,000 (Taka eighty three lakhs) only to the Air Parabad as rent. The complainant did not mention the date of agreement and
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