IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO.37122 OF 2022 Md. Mosharaf Hossain

............Accused-Petitioner.

- VERSUS-

The State and another

.....Opposite Parties.

Mr. Md. Hafizur Rahman, Advocate

------- For the petitioner. Mr. S.M. Shahjahan, Senior Advocate with Mr. Mustasin Tanzir, Advocate

----- For the opposite party No.2.

Mr. B.M. Abdur Rafell, DAG with

Mr. Binoy Kumar Ghosh, A.A.G.

Mr. A.T.M. Aminur Rahman (Milon), AAG Ms. Lily Rani Saha, AAG

..............For the State.

Heard on 23.11.2023, 29.11.2023 and 10.01.2024. Judgment on 10.01.2024.

MD. SALIM, J:

By this Rule, the opposite parties were asked to show cause as to why the proceedings of Sessions Case No.1373 of 2021 arising out of C. R. Case No.779 of 2021 under Section 138 of the Negotiable Instrument Act, now pending before the Joint Sessions Judge, 3rd Court, Narayanganj should not be quashed.

Facts in a nutshell for disposal of this Rule are that in order to discharge the loan liability the accused petitioner gave two cheques to M/S Harun and brothers for repayment of Tk.10,0000/ and Tk. 10,00000/- respectively. The complainant-opposite party No. 2 namely Ismail Hossain deposited both cheques to the bank for encashment and was dishonored on the ground of insufficiency of funds. Thereafter, the complainant served a notice asking the accused petitioner to pay the money but the accused petitioner did not pay the same. Thus the complainant preferred the case under section 138 of the Negotiable Instruments Act, of 1881 against the accused petitioner.

The learned Magistrate took cognizance of the offense and subsequently, the charge was framed against the accused petitioner by the learned Joint Sessions Judge, 3rd Court, Narayanganj.

The accused petitioner after obtaining bail from the court below preferred the instant case before this court and obtained the Rule and an order of stay.

Mr. Md. Hafizur Rahman Khan, the learned counsel appearing on behalf of the accused petitioner submits that the cheque in question was issued in the name of M/S Harun and Brothers where Mr. Md. Rafiqul Islam is the proprietor of the company but the petition of the complaint was filed by one Md. Ismail Hossain, Assistant Manager of M/S Harun and Brothers does not hold any power to be a complainant of the instant case. So, the proceeding of the instant case is liable to be quashed as it is not tenable as per the provision so enumerated in section 141 of the Negotiable Instruments Act, of 1881. In his contention, he referred to the case of Md. Nur Hossain Vs Md. Alamgir Alam reported in 37 BLD (AD) 202.

On the contrary, Mr. S. M. Shahjahan the learned counsel appearing on behalf of the complainant-opposite party opposes the contention so made by the learned counsel for the accused petitioner and submits that the trial of the instant case had already been started and one witness was examined on behalf of the prosecution and as such at this stage there is no provision to quash proceedings of a case. In his contention, he referred to a case of Gulam Sarwar Hero Vs the State reported in 13 MLR (AD) 103.

Mr. B.M. Abdur Rafell, DAG the learned Deputy Attorney General for the state adopted the submission made by Mr. Shahjan the learned counsel for the complainant-opposite party.

We have heard the learned Counsels for both parties and anxiously perused the petition of complaint, related documents, and other materials on the record.

Now in order to appreciate the submission advanced at the bar let us examine the relevant law in the context of the facts of the present case.

Section 9 of the Negotiable Instrument Act provides that –‗‗ Holder in due course‘‘ means any person who for consideration becomes the possession of a promissory note, bill of exchange, or cheque if payable to bearer, or the payee, or indorse thereof, if payable to order, before it became overdue, without notice that