IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISIDICTION)

Present:

Mr. Justice S M Kuddus Zaman And

Mr. Justice Md. Ali Reza

Criminal Miscellaneous Case No.64513 of 2022

Md. Zahirul Islam

.... Accused-Petitioner

-Versus-

The State

…. Opposite Party

Mr. Md. Manjurul Karim with

Mr. Md. Abu Sufiqan, Advocates

.... For the petitioner.

Mr. Sujit Chatterjee, D.A.G.

.… For the State.

Mr. Mainul Haque Howlader, Advocate

…. For the complainant opposite party No.2.

Heard and Judgment on 09.01.2024

S M Kuddus Zaman, J:

On an application under section 561A of the Code of Criminal Procedure this Rule was issued calling upon the opposite parties to show cause as to why the proceedings of Sessions Case No.9249 of 2021 arising out of C.R. Case No.321 of 2020 under Sections 138/140 of the Negotiable Instrument Act, 1881, now pending in the Court of learned Metropolitan Joint

Sessions Judge, Second 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.

Facts in short are that the petitioner is accused No.5 and Chief Executive Officer of AWR Development Limited. It has been alleged by complainant opposite party No.2 that on 11.09.2018 the petitioner executed a deed of contract appointing the complainant as a consultant and for performance of above consultancy service the petitioner owed Tk2,45,00,000/-(two crore fourty five lac) to the opposite party and for payment of above money gave Cheque No.CD No.1383373 on 12.09.2020 to the complainant which was dishonored on 08.11.2020 for insufficient fund. On compliance of all legal requirements and procedure the complainant filed this case under Section 138 of the Negotiable Instrument Act, 1881.

Mr. Md. Abu Sufian, learned Advocate for the petitioner submits that complainant opposite party No.2 Alam and Associates was the payee of the impugned cheque dated 12.09.2020. Above Alam and Associates is a proprietorship firm owned by Mozammal Haque Chowdhury and he alone was the payee of above cheque and legally competent to bring a proceedings against the accused petitioner under Section 138 of the Negotiable Instrument Act, 1881. But above Alam and Associates or its proprietor Mozammel Haque Chowdhury was not the complainant of this case. The case was filed by one Md. Hossain Chowdhury who was allegedly empowered or authorized to file above case. Since complainant Md. Hossain Chowdhury was not the payee of the impugned cheque or a holder in due course as has been provided in Section 138 of the Negotiable Instrument Act, 1881 he was not legally competent to bring and maintain this case. As such this proceedings is a still born and preposterous one and liable to be quashed, concluded the learned Advocate for the petitioner.

On the other hand Mr. Mainul Haque Howlader, learned Advocate for the complainant opposite party No.2 submits that complainant Md. Hossain Chowdhury was properly authorized by Mozammel Hoque Chowdhury the proprietor of Alam and Associates who is the payee of the impugned cheque to file on his behalf this case and on the strength of above authority this case has been lawfully filed under Section 138 of the Negotiable Instrument Act, 1881. The learned Judicial Magistrate on correct appreciation of materials on record has rightly taken cognizance against the petitioner and others under Section 138 of the Negotiable Instrument Act, 1881 and initiated this proceedings which calls for no interference.

In support of above submission the learned Advocate referred to the unreported judgment of the Appellate Division passed in Criminal Petition for Leave to Appeal No.798 of 2018.

We have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

It is not disputed that the petitioner who is accused No.5 and Chief Executive Officer of AWR Development Company Limited signed and issued a cheque of Tk.2,45,000,00/- to Alam