IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION) Present

Mr. Justice Ashish Ranjan Das

And

Mr. Justice Md. Riaz Uddin Khan

Criminal Miscellaneous Case No. 44911 of 2022

IN THE MATTER OF:

An Application under Section 561A of the Code of Criminal Procedure

-And-

IN THE MATTER OF : Rohima Begum

...Accused-Petitioner Versus

The State and another

...Opposite Parties

Mr. Syed Mohammad Raihan Uddin with Mr. Syfullah Al-Muzahid, Advocate

...For the Petitioner Mr. Mustafa Emam Hasan, Advocate

…For the opposite party No. 2 Mr. S.M. Asraful Hoque, D.A.G with

Ms. Fatema Rashid, A.A.G

Mr. Md. Shafiquzzaman, A.A.G. and

Mr. Md. Akber Hossain, A.A.G

...For the State

Judgment on 28.04.2024

Md. Riaz Uddin Khan, J:

Upon an application filed under section 561A of the Code of Criminal Procedure the opposite parties were asked to show cause as to why the Sessions Case No. 135 of 2021 arising out of Complaint Register Case No. 180 of 2020 filed under section 138 of the Negotiable Instruments Act, 1881, now pending in the 1st Court of Joint

Sessions Judge, Dhaka should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of Rule further proceeding of the instant Case was stayed.

Brief facts for disposal of this case are that the complainant opposite party filed the instant case under section 138 of the Negotiable Instruments Act bringing allegation that there was a good relation between the father of the complainant and the son of the accused. The son of the accused took loan of 2(two) lac Saudi Riyal from the father of the complainant. In order to pay back with interest, the accused gave a cheque being Cheque No. MSS 6266222 of Tk- 7000,000/- (Seventy Lac) to the complainant. The complainant deposited the cheque for encashment which was dishonored on the ground of “insufficient fund and positive pay instruction require”. Thereafter the complainant issued legal notice upon the accused for repayment of the cheque amount which she did not comply, for which the complainant filed the instant petition of complaint with an explanation for filing the same beyond the statutory period.

In course of time charge was framed under section 138 of the Negotiable Instruments Act by the Joint Sessions Judge, 1st Court, Dhaka and the matter was fixed for examination of witnesses. At this stage the accused-petitioner moved this

court and obtained the rule and order of stay as stated above.

The learned Advocate Mr. Syfullah Al Muzahid appearing for the accused-petitioner at the very outset submits that as per the decision of our Appellate Division reported in 72 DLR (AD) 204, in the case of Falzlul Haque (Md) Sardar and others-vs-Grameen Phone Limited and others, the instant case filed beyond the statutory period deemed to be condoned, for which he has no case on the point of limitation earlier taken in this petition. He then submits that admittedly no consideration was passed between the accused- petitioner and the complainant-opposite party, because according to the petition of complaint there was a good relationship between the father of the complainant and the son of the accused and son of the accused took loan of 2 (two) lac Saudi Riyal from the father of the complainant. Since no consideration has been passed between the complainant and the accused, this case under section 138 of the Negotiable Instruments Act is not maintainable. In support of his contention, he cited the decision reported in 63 DLR 279 in the case of Shahnaj Begum Munni Vs. State and another.

Per contra, the learned Advocate Mr. Mustafa Emam Hasan submitting a counter affidavit on behalf of the complainant opposite party No. 2 submits that the accused-petitioner issued the cheque as per instruction of his son who took the loan and whether any consideration was passed to the accused petitioner is to be decided by the trial court after taking evidence. He