Act/Law wise: Judgment of Supreme Court of Bangladesh (AD)



Negotiable Instruments Act, 1881 (NI Act) (BD)
Section/Order/ Article/Rule/ Regulation Head Note Parties Name Reference/Citation
Section 6, 138, 141

We are of the view that the operation of section 138 of the Act, 1881 cannot be obstructed or, in any way, circumvented by the mere fact of filing of a suit by the drawer of the dishonoured cheque in civil Court whatever allegations may be in the plaint about the same and the relief prayed for therein, because such a device shall totally make the section itself nugatory. However, if a holder or the payee gets hold of a dishonoured cheque by fraudulent means or forgery, the drawer of the cheque shall have the liberty to take such defence during the trial. Consequently we find no reason to interfere with the impugned judgment and order passed by the High Court Division. This petition is dismissed. …Arif-Uz-Zaman(Md.) =VS= The State, (Criminal), 2020 (1) [8 LM (AD) 614] ....View Full Judgment

Arif-Uz-Zaman(Md.) =VS= The State 8 LM (AD) 614
Sections 79 & 80

Section 79 provides for interest when it is expressly made payable on a promissory note or a bill of exchange, and section 80 provides that the rate of interest would be 6% per annum, when no rate of interest is specified in the instrument. [Para-12J Sonali Bank Vs. M/S. Karnaphuli Works Ltd. 2 BLT (AD)-78

Sonali Bank Vs. M/S. Karnaphuli Works Ltd. 2 BLT (AD) 78
Section 118

Claim for recovery of money by Bank—Claim for recovery of money by a Banking Company whether can be decreed in the absence of any evidence as to actual payment of the amount—In view of the fact that title deeds were deposited with the bank along with all other usual documents, executed by the predecessor of the defendant Company .ind regular entries in the ledger and clean :ash book of the Bank in respect of the loan, the claim is established—There is also admission of the Managing Director of the defendant Company as to the liability to the Bank—Moreover there is presumption under he Negotiable instruments Act, Bankers Books of Evidence Act and Banking Companies Ordinance. Planters (Bangladesh) Ltd. Vs. Mahaluxmi Bank Limited and others 5BLD(AD)150.

Planters (Bangladesh) Ltd. Vs. Mahaluxmi Bank Limited and others 5 BLD (AD) 150
Section 118,138

Dishonour of cheque,
Once there is admission of the execution of the cheque or the same is proved to have been executed, the presumption under section 118(a) of the Act is raised that it is supported by consideration. The category of “stop payment cheque” would be subject to rebuttal and hence it would be an offence only if the drawer of the cheque fails to discharge the burden of rebuttal. The accused person can prove the non-existence of a consideration by raising a probable defence. If the accused discharges the initial onus of prove showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant. He will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of negotiable instrument . …Md. Abul Kaher Shahin Vs. Emran Rashid & anr., (Criminal), 14 SCOB [2020] AD 96 ....View Full Judgment

Md. Abul Kaher Shahin Vs. Emran Rashid & anr. 14 SCOB [2020] AD 96
Sections 123A & 138

Crossed cheque–
The legislative mandate as used in clause (a) of sub-section (2) of section 123A of the Act, 1881 that when a cheque is crossed "account payee" shall cease to be negotiable means it cannot be negotiated or encashed with any other person except the person in whose favour the same was issued. To make it clearer, a crossed cheque "account payee" must be enchased through the account of the holder in whose favour it was issued. So, by no means, a crossed cheque "account payee" loses its character as a negotiable one within the meaning of section 138 of the Act, 1881. Moreover, section 138 of Act, 1881 which has defined "Negotiable instrument" has not made any distinction between crossed cheque "account payee" or cheque of other kind such as bearer cheque we ordinarily mean. Thus, we find that section 123A of the Act, in no way, creates any bar in proceeding with a case under section 138 of the Act, 1881. In other words, we do not see any nexus of section 123A with the proceedings to be initiated under section 138 of the Act. .....Sahab Uddin(Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 592] ....View Full Judgment

Sahab Uddin(Md.) =VS= The State 3 LM (AD) 592
Sections 138, 140 and section 141

Section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand payment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act–
Section 138(1) and section 141(b). Sections 138 and 140 of the Act are substantive provisions of law giving details of the offence, when the offence is committed and who is liable; section 141 of the Act describes the procedure to be followed.
That the second and subsequent presentation of the cheque must be within six months from the date on which the cheque was drawn in order to be able to prosecute the drawer of the cheque criminally under section 138 of the Act. Upon subsequent presentation of the cheque for payment, if it is again dishonoured another opportunity will accrue to the beneficiary to take action as provided under section 138(1) of the Act, and again, in accordance with the provisions of section 141, the beneficiary of the cheque will be obliged to make complaint against such subsequent dishonour within a period of one month from the cause of action arising under proviso (c) to section 138 (1) of the Act. The offence is committed each time the cheque is dishonoured on presentation for payment.
The procedural limitation provided in section 141 (b) cannot take away the substantive right accruing to the beneficiary of a cheque to prosecute any number of subsequent presentation of the cheque on its dishonour. Similarly, each dishonour will give rise to a concomitant right to serve notice under proviso (b) to section 138 (1) of the Act and demand payment, failing which the bearer of the cheque will have the right to make a complaint in writing in accordance with section 141 (a) of the Act. It will be entirely up to the bearer of the cheque to proceed in respect of any particular dishonour of the cheque. …Nizam Uddin Mahmud Hossain =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 259] ....View Full Judgment

Nizam Uddin Mahmud Hossain =VS= The State 7 LM (AD) 259
Section 138

Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions– The High Court Division being last court of facts upon elaborate consideration of the evidence both the oral and documentary has come to the conclusion that the complainant failed to take any step to sell the property of the respondent, rather the respondent and his brother and sister sold the said property to the U.S.A. Embassy and the complainant did not help the respondent in any way in that regard.
In his cross examination the complainant has said, "শর্তে উল্লেখ আছে বাজার মূল্যে ক্রেতা আনিতে পারিলে আমি (বাদী) কমিশন পাব।" There is no such averment, in the petition of complaint or in the evidence that the complainant has stated that he had brought any purchaser who offered market price of the property. From the evidence quoted above it appears that the condition under which the cheques were issued was not fulfilled by the complainant appellant. Thus, the respondent instructed the bank not to encash the impugned cheques. Accordingly, the bank returned the cheques with endorsement, “payment stopped by the drawer”. Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions. Consequently, the question of committing an offence by the accused respondent punishable under section 138 of the Act does not arise. All the appeals are dismissed. ...Abul Kaher Shahin(Md.) =VS= Emran Rashid, (Criminal), 2020 [9 LM (AD) 338] ....View Full Judgment

Abul Kaher Shahin(Md.) =VS= Emran Rashid 9 LM (AD) 338
Section 138

The Negotiable Instrument Act, 1881
Section 138
Artha Rin Adalat Ain, 2003
Section 6
Civil and criminal cases shall proceed in accordance with law– The final conclusion of the High Court Division is contradictory to several decisions of this Division wherein it has been clearly held that the pendency of a civil suit will not hinder proceeding of a criminal case and vice versa. In this regard, reference may be made to the cases of Monzur Alam (Md) vs State, 55 DLR (AD) 62, SAB Solaiman Ali vs Rangs Industries Limited, 2004 1 Law Guardian (AD) 20.
We are constrained to hold that the impugned judgements and orders of the High Court Division are palpably erroneous set aside. Accordingly, the criminal petitions for leave to appeal are disposed of with direction that both civil and criminal cases shall proceed in accordance with law. ...Eastern Bank Limited =VS= Sirajuddula(Md), (Criminal), 2020 [9 LM (AD) 566] ....View Full Judgment

Eastern Bank Limited =VS= Sirajuddula(Md) 9 LM (AD) 566
Sections 138, 141(b)

The Negotiable Instruments Act, 1881 (Amendment Act 1994)
Sections 138, 141(b)
The Code of Criminal Procedure, 1898
Sections 561A
It is the argument of the appellant that on the complainant’s own case the appellant must be fixed with notice for payment at least from 4-1-96 and after the expiry of 15 days from that date, i.e., from 19-1-96, the cause of action should be taken to have arisen due to non-payment within the said period and the complaint was required to be filed within one month from the said date (19-1-96) in compliance with clause(b) of section 141. Admittedly the petition of complaint was filed long after that date i.e., on 18-4-96 and thus cognizance could not be taken upon such complaint. Unfortunately, the High Court Division failed to appreciate this simple point raised before it and wrongly rejected the application for quashing summarily under a misconception. For the reasons this appeal is allowed and the impugned proceeding is quashed. .....SM Anwar Hossain =VS= Md. Shafiul Alam (Chand) , (Criminal), 2022(1) [12 LM (AD) 617] ....View Full Judgment

SM Anwar Hossain =VS= Md. Shafiul Alam (Chand) 12 LM (AD) 617
Section 138

On the contrary Appellate Division reiterates that if any cheque is presented to the Bank twice or on many more times, within six months from the date it was drawn, computation of the period for prosecution under section 138 of the Negotiable Instrument Act should be done from which the cheque is lastly returned. .....Nizam Uddin Mahmood =VS= Abdul Hamid Bhuiyan, (Criminal), 2022(1) [12 LM (AD) 655] ....View Full Judgment

Nizam Uddin Mahmood =VS= Abdul Hamid Bhuiyan 12 LM (AD) 655
Section 138

Non disclosure of the date as to receipt of notice by the accused and failure to mention any legal cause of action in the petition of complaint, so the proceeding cannot be allowed to continue and as such it is liable to be quashed– After considering the facts and circumstances and the law on the point Appellate Division finds substance in the submissions made on behalf of the respondent. In view of the non disclosure of the date as to receipt of notice by the accused and failure to mention any legal cause of action in the petition of complaint, this Division is of the view that the proceeding cannot be allowed to continue and as such it is liable to be quashed. In view of our discussion made above the ultimate order of the High Court Division in quashing the proceeding is found to be sustainable. .....Nizam Uddin Mahmood =VS= Abdul Hamid Bhuiyan, (Criminal), 2022(1) [12 LM (AD) 655] ....View Full Judgment

Nizam Uddin Mahmood =VS= Abdul Hamid Bhuiyan 12 LM (AD) 655
Section 138

The Negotiable Instruments Act, 1881
Section 138
Code of Criminal Procedure, 1898
Section 561A
When the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding– Appellate Division is of the view that the High Court Division in exercising its jurisdiction at the very first instance is not empowered to interfere with the trial proceedings by invoking jurisdiction under section 561A of Code of Criminal Procedure,1898. It has been consistently held by this Division that when the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding. In this context reference may also be made to the decision of the case of Habibur Rahman Howlader -Vs- State and another reported in 53 DLR (AD) 111. This Division is of the view that the impugned judgment and order of the High Court Division is not sustainable in law. Accordingly, this Division finds merit in the appeal. Consequently the proceeding of C. R. Case No.3783 of 2004 under Section 138 of the Negotiable Instruments Act, 1881, now pending in the Court of Metropolitan Magistrate, Dhaka shall proceed in accordance with law. .....Alhaj Golam Rasul Belal =VS= Habibullah Shakir, (Criminal), 2022(1) [12 LM (AD) 672] ....View Full Judgment

Alhaj Golam Rasul Belal =VS= Habibullah Shakir 12 LM (AD) 672
Sections 138, 141(C)

The legal notice was issued within time and the complaint case has also been initiated within time we do not find any illegality in the judgment and order passed by the High Court Division in discharging the Rule– There is no denial as to the dishonouring of the cheque issued by the accused petitioner and the fact of issuance of legal notice after the last occasion of dishonoring the cheque by the bank concern with the endorsement “not arranged for and refer to the drawar” and on the face of dishonour of the disputed cheque and non-response to the demand for payment against dishonoured cheque Appellate Division finds criminality as alleged and as the High Court Division has observed that the accused persons have been avoiding payment and that the legal notice was issued within time and the complaint case has also been initiated within time this Division does not find any illegality in the judgment and order passed by the High Court Division in discharging the Rule. The High Court Division on detailed discussions on the issues involved has arrived at its decision with cogent reasonings, which are in accordance with law and hence no interference is called for. .....Joynul Karim =VS= The State, (Criminal), 2022(1) [12 LM (AD) 686] ....View Full Judgment

Joynul Karim =VS= The State 12 LM (AD) 686
Section 138

Complainant failed to prove the case as made out in the complaint-petition against accused-respondent No. 1 beyond all reasonable doubt that the complaint was filed in order to harass respondent No. 1– The learned Sessions Judge, Bagerhat convicted appellant-respondent No. 1 under section 138 of the Negotiable Instruments Act, 1881 and sentenced her there under to suffer simple imprisonment for 6 (six) months with a fine of Tk. 10,00000/- (Ten lakh),in default, to suffer simple imprisonment for further 1(one) month more.
Feeling aggrieved by and dissatisfied with the aforesaid impugned judgment and order passed by the High Court Division, the complainant as the leave-petitioner filed this criminal petition for leave to appeal before this Division.
Admittedly, accused-respondent No. 1 was given in marriage to the son of the complainant-leave-petitioner and as soon as respondent No. 1 divorced her husband, the complaint-petition was filed against respondent No. 1. Having gone through the record, Appellate Division is fully satisfied that the complaint-petition was filed in order to harass respondent No. 1 for divorcing the son of the complainant-leave-petitioner. This Division does not find any substance in this criminal petition. Accordingly, this criminal petition is dismissed. ...Sheikh Wahiduzzaman Dipu =VS= Tanima Afrin Kumkum, (Criminal), 2021(2) [11 LM (AD) 312] ....View Full Judgment

Sheikh Wahiduzzaman Dipu =VS= Tanima Afrin Kumkum 11 LM (AD) 312
Sec-138

Dishonoured due to insufficient fund–
We also find it difficult to accept that if the petitioner had in fact paid the money owed to the complainant in the year 2011, as alleged by him, that he did not take any steps to stop payment of the cheque issued by him earlier, especially when he himself states that the complainant told him that the cheque was lost, keeping in mind that anyone could attempt to encash that cheque. From 24.7.2011, when the petitioner apparently paid Tk.10 lac by Pay Order, till 18.09.2012 when the complaint was lodged, the petitioner did nothing to retrieve the cheque or to stop payment of the cheque. He admitted in his cross examination that he did not file any G.D. in respect of the non-return of the cheque. Moreover, we find from the deposition of the petitioner (D.W.1) that he admitted in cross examination of other transactions between himself and the complainant with regard to sale of land by the complainant and his wife and the payment of money in 2011. .....M.A. Azam Chowdhury =VS= A.B.M. Asaduzzamn & another, (Criminal), 2016-[1 LM (AD) 591] ....View Full Judgment

M.A. Azam Chowdhury =VS= A.B.M. Asaduzzamn & another 1 LM (AD) 591
Section 138

The trial court has completed the cross examination of the P.W.1 on 13-03-2014 and thereafter, the case was fixed for examination of the accused under section 342 of Criminal Procedure Code. These facts prove that the respondent has been adopting dilatory tactics. The High Court Division did not apply its judicial mind in staying the proceeding. The rule itself is not maintainable. Accordingly, the rule is discharged. The trial court is directed to complete the trial within 1 (one) month from the date of receipt of the order. .....Borak Real Estate (Pvt.) Ltd. =VS= Arifur Rahman(Mr.), (Criminal), 2017 (2)– [3 LM (AD) 543] ....View Full Judgment

Borak Real Estate (Pvt.) Ltd. =VS= Arifur Rahman (Mr.) 3 LM (AD) 543
Section 138

The accused petitioner issued 60 post dated cheques in favour of complainant financial institution. As per provisions of Section 138 of the Negotiable Instrument Act, prima-facie case against the petitioner, had been made out. The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceedings were not liable to be quashed. .....Ehetasamul Haque =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 552] ....View Full Judgment

Ehetasamul Haque =VS= The State 3 LM (AD) 552
Section 138

An offence under section 138 of the Negotiable Instruments Act is not compoundable, it being a special law. However, in view of the submissions made by the learned Advocates on Record, we are of the opinion that the ends of Justice will be sufficiently met if the sentence of the petitioner is reduced to imprisonment for the period already undergone by him in prison, and the sentence of fine is set aside. We note that the complainant appeared before us to say that he has received his money in full satisfaction. The criminal petition for leave to appeal is dismissed. The conviction of the petitioner under section 138 of the Negotiable Instruments act is affirmed with modification of the sentence as mentioned above. .....Idris Chowkder (Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 560] ....View Full Judgment

Idris Chowkder (Md.) =VS= The State 3 LM (AD) 560
Sections 138 and 141(b)

Criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial– There was no violation of section 141(b) of the Negotiable Instrument Act. The High Court Division further found that the law is now settled on the point that a criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial. .....M.K. Bazlur Rahman =VS= Md. Johurul Haque, (Criminal), 2017 (2)– [3 LM (AD) 586] ....View Full Judgment

M.K. Bazlur Rahman =VS= Md. Johurul Haque 3 LM (AD) 586
Section 138

The powers given to the Court is discretionary–
Section 138(1) empowers the trial Court to punish with imprisonment for a maximum period of one year, or with fine which may extend to thrice the amount of the cheque or both. The powers given to the Court is discretionary. The language used in the section is not such that the Court must impose fine thrice the amount of the cheque. The legislature has left the matter to the discretion of the trial Court. .....Shahidur Rahman Khadem =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 600] ....View Full Judgment

Shahidur Rahman Khadem =VS= The State 3 LM (AD) 600
Section 138

The Negotiable Instrument Act, 1881
Section-138 r/w
Code of Criminal Procedure, 1898
Section 561
The cheques were issued by the respondent which were returned with endorsement, "payment stopped by the drawer". Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in Section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under Section 561A of the Code of Criminal Procedure. The judgment and orders of the High Court Division are hereby set aside. The concerned Courts are directed to proceed with the cases in accordance with law. .....S.M. Redwan =VS= Md. Rezaul Islam, (Criminal), 2017 (2)– [3 LM (AD) 605] ....View Full Judgment

S.M. Redwan =VS= Md. Rezaul Islam 3 LM (AD) 605
Section 138 & 140

If a case is instituted against a company alone, excluding the persons who were responsible to the affairs of the company’s, it can be prosecuted and punished–
The difference between sections 138 and 140 is that in respect of section 138 the offence is committed by human beings, that is to say, natural person and in section 140 though the expression “the person” is used which is qualified by a company which means “any body corporate and includes a firm or other association of individuals” which is a juristic person or not. It can be prosecuted for the offence under section 138. Section 140 of the Act, we are of the view that for proper and effective adjudication of the cases, the complainant (s) / drawee (s) may add the company as one of the accused in the case but for not impleading the company, the case will not fail. .....Mohammad Eusof Babu =VS= Jhon Provanjon Chowdhury, (Criminal), 2017 (2)– [3 LM (AD) 562] ....View Full Judgment

Mohammad Eusof Babu =VS= Jhon Provanjon Chowdhury 3 LM (AD) 562
Section 138

The order of conviction passed by the trial Court was in accordance with the law as by adducing evidence the complainant succeeded in proving that a cheque for Tk.7,00,000.00 given to him was, when duly presented, dishonoured and that before filing the complaint petition, he complied with the procedural requirements laid down in section 138 of the Act. So, this leave petition is dismissed as it is bound to be. The petitioner has in fact paid all the money due to the complainant. The complainant admitted that he had received the full amount of the cheque from the accused petitioner and that he had no further claim against him. In view of the fact that the leave petitioner has paid the full amount of the cheque, he is exonerated from paying any more and as he has already spent 3 months in prison, he need not go back to prison and the sentence of imprisonment is thus modified to the period already undergone by him in prison. .....Biplob (Md.) =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 364] ....View Full Judgment

Biplob (Md.) =VS= The State 4 LM (AD) 364
Section 138

Realization of fine to be paid to the payee–
Complaint petition filed by an aggrieved person, i.e. the payee, not at the instance of the ‘State’; the State is not a ‘necessary’ party though it may be ‘proper’ party in case under the Act, 1881; the cheque bears the proprietary and pecuniary interest of the payee and the law provides for realization of fine to be paid to the payee, vide sub-section (2) of section 138; by way of amendment, done by Act No. III of 2006 (09.02.2006), section 138A has been inserted making provisions to deposit not less than 50% of the amount of the dishonoured cheque, in the trial Court, as a precondition to prefer appeal; there is no similar provision for preferring appeal by a person convicted under any other law; apparently, the Act, 1881 is a piece of beneficial legislation and distinct from other penal law; hence, in appropriate case, costs may be awarded in case under the Act, 1881. .....Khondker Latifur Rahman =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 383] ....View Full Judgment

Khondker Latifur Rahman =VS= The State 4 LM (AD) 383
Section 138

Two questions are involved in these appeals and petitions. The first question is whether if a company incorporated under the Companies Act commits an offence punishable under section 138 of the Negotiable Instruments Act, 1881 is excluded from prosecution, can a director, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case. .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251] ....View Full Judgment

Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury 5 LM (AD) 251
Section 138

Cheque dishonour–
There is no legal bar of filing a single case against the drawer of the cheques if the notice is served within the period of limitation intimating the fact of dishonour of the cheques with a request to pay the amount involved in those cheques within a period of thirty days. .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251] ....View Full Judgment

Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury 5 LM (AD) 251
Section 138

Scope to cross-examine and also be at liberty to examine defence witness–
The High Court Division took the right view that the accused should be given scope to cross-examine PW1 allowing 2/3 dates as the Metropolitan Additional Sessions Judge, in the meantime, fixed the respective cases for examination of the accused under section 342 of the Code and accordingly, we endorse the same. We add by saying that the respective petitioners shall also be at liberty to examine defence witnesses, if they so desire, after their examination under section 342 of the Code. The trial Court is directed to conclude the trial as expeditiously as possible, but not later than 2(two) months from the date of receipt of this judgment. .....Majad Hossain =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 318] ....View Full Judgment

Majad Hossain =VS= The State 5 LM (AD) 318
Sections 138, 140

The Negotiable Instrument Act, 1881
Sections 138, 140
The Code of Criminal Procedure
Section 561A
The disputed questions of facts which should be decided after appreciating the evidence at the trial–The High Court Division in disposing the application under the provision of section 561A of the Code does not require to formulate any disputed question of facts, rather, only to see whether the story of the F.I.R. or petition of complaint discloses the criminal offences or not. Therefore, the High Court Division exceeded the extraordinary jurisdiction by quashing the proceeding. Accordingly, the judgment of the High Court Division is set aside. ...Ashfaq Hossain =VS= The State, (Criminal), 2021(1) [10 LM (AD) 515] ....View Full Judgment

Ashfaq Hossain =VS= The State 10 LM (AD) 515
Sections 138, 140

The Negotiable Instruments Act, 1881
Section 138, 140
The Evidence Act, 1872
Section 102
According to section 102 of the Evidence Act, 1872 the burden of proof is upon the respondent to prove that though she was the director of the company, the offence has been committed without her knowledge or that she was a non-executive director of the company and she was not involved in day-to-day affairs of the company etc.
The innocence of the respondent No.1, the director, has to be proved before the Court by adducing evidence and thus, the director, respondent No.1 has to face the trial. Only after taking evidence during trial if the director, respondent No.1 herein, is found that she was not to be a person-in-charge of the affairs of the company at the relevant time of the issuance of the cheque only then she may be exonerated from the charge. ...Phoenix Finance and Investment Ltd. =VS= Yeasmin Ahmed, (Criminal), 2021(1) [10 LM (AD) 522] ....View Full Judgment

Phoenix Finance and Investment Ltd. =VS= Yeasmin Ahmed 10 LM (AD) 522
Section 138

In order to make a person liable under section 138 the payee of a cheque has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of information by hun from the Bank regarding the return of the chequer as unpaid in terms of clause (b) to the proviso. The drawer of the cheque is obliged to make the payment within 15 days of the receipt of the said notice failing which the cause of action for prosecution will arise under clause (c). [Para-7] S. M. Anwar Hossain Vs. Md. Shafiul Alam & Am: 7BLT (AD)-218

S. M. Anwar Hossain Vs. Md. Shafiul Alam & Am: 7 BLT (AD) 218
Section 138

In order to make a person liable under section 138 the payee of a cheque has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid in terms of clause (b) to the proviso. The drawer of the cheque is obliged to make the payment within 15 days of the receipt of the said notice failing which the cause of action for prosecution will arise under clause (c). S.M. Anwar Hossain Vs Md. Shafiqul Alam (Chand) and another, 19BLD(AD)166

S.M. Anwar Hossain Vs Md. Shafiqul Alam (Chand) and another, 19 BLD (AD) 166
Sections 138 and 141

read with
Code of Criminal Procedure, 1898 (V of 1898)
Section—561A
The cheque in question was issued by the appellant on 21.12.1995 which was presented for encashment on 23.12.1995 but it was dishonoured on the same day whereupon the complainant issued notice to the appellant on 24.12.1995 for payment of money for which the cheque was issued following the clause (b) to the proviso to section 138 of the Act. On receipt of the said notice the appellant in order to avoid payment fraudulently informed the complainant through a lawyer on 4.1.1996 that he had lost the cheque written in the complainants name and made a GD Entry in that behalf. The cause of action for prosecution will arise under clause (c) of the proviso to section 138 on the failure of the appellant to pay the amount within 15 days of the receipt of the notice of the complainant. Relying on the complainant’s own case it is contended on behalf of the appellant the accused-appellant must be fixed with notice for payment at least from 4.1.1996 and after the expiry of 15 days from that date i.e; from 19.1.1996 the cause of action should be taken to have arisen due to non-payment within the said period and complaint was required to be filed within one month from 19.1.1996 in compliance with clause (b) of section 141 of the Act. Admittedly the petition of complaint was filed long after that date i.e., on 18.4.1996 and thus cognizance could not be taken upon such complaint. The subsequent allegations will not save the limitation because the requirement under the law is that the complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 of the Act and hence the impugned proceeding is quashed. S.M. Anwar Hossain Vs Md. Shafiqul Alum (Chand) and another, 19BLD(AD)166

S.M. Anwar Hossain Vs Md. Shafiqul Alum (Chand) and another, 19 BLD (AD) 166
Sections 138 and 141

The cause of action for prosecution will arise under clause (c) of the proviso to section 138 of the Negotiable Instruments Act on the failure of the appellant to pay the amount within 15 days of the receipt of the notice of the complainant. In the present case, the cause of action arose on 19-1-96 and the petition of complaint was required to be filed within one month from 19-1-96 in compliance with clause (b) of section 141 of the Act which having not been done by the complainant the cognizance of the offence cannot be taken upon such complaint and hence the impugned proceeding is quashed. SM Anwar Hossain vs Shafiul Alam (Chand) & another 4BLC(AD) 106.

SM Anwar Hossain vs Shafiul Alam (Chand) & another 4 BLC( AD) 106
Section 138(1) (b)

Whether the notice was a demand notice or not as contemplated under section 138 (1) (b) of the Act is a disputed question of fact which could not be decided by the High Court Division while exercising jurisdiction under section 561A of the Code. Rashedul Alam Chowdhury vs ASM Shahajahan 17 BLC (AD) 39

Rashedul Alam Chowdhury vs ASM Shahajahan 17 BLC (AD) 39
Section 138

The complainant served a legal notice within 15 days of the receipt of the information of return of the cheques. So there is no valid ground for quashing the proceeding under section 138 of the Act. Habibur Rahman Howlader vs State 53 DLR (AD) 111.

Habibur Rahman Howlader vs State 53 DLR (AD) 111
Section 138

Under section 138 of the Negotiable Instruments Act an offence is committed if a cheque is dishonoured and if payment is not made within 15 days after receipt of a legal notice. It is a settled law that criminal proceeding can be proceeded independently of the civil suit. Manzur Alam (Md) vs State and another 55 DLR (AD) 62.

Manzur Alam (Md) vs State and another 55 DLR (AD) 62
Section 138

The convict respondent admitted about the loan, issuance of cheques by him and dishonour of cheques and that a notice under section 138(1)(b) has been given by the complainant. Thus, all the legal requirements are present to bring the offence under section 138 of the Negotiable Instruments Act. Amir Hossain vs MA Malek and others 56 DLR (AD) 146.

Amir Hossain vs MA Malek and others 56 DLR (AD) 146
Sections 138 & 141

Subsequent allegations will not save limitation for prosecution– The requirement under the law is that the complaint against non–payment of money has to be filed within one month of the date on which the cause of action arises–The High Court Division wrongly rejected the application for quashing. SM Anwar Hossain vs Md Shajiul Alam (Chand) and another 51 DLR (AD) 218.

SM Anwar Hossain vs Md Shajiul Alam (Chand) and another 51 DLR (AD) 218
Section 138

Filing the complaint by the attorney no illegality has been committed–– The complainant while in jail hajat, filed the complaint before the concerned Court of Magistrate through his attorney to avoid the limitation and satisfactory explanation has been furnished to that effect and as such Appellate Division cannot ignore this compelling circumstance in filing the complaint by the attorney. In the instant case, ‘the holder in due course of the cheque’ himself is the complainant and same was presented before the Court through the attorney. ––This Division have no hesitation to hold that in filing the complaint by the attorney no illegality has been committed and the learned Magistrate rightly took cognizance into the case against the accused petitioner having complied with the relevant provision of law. .....Kabir Reza =VS= Shah Mohammad Ashraf Islam, (Criminal), 2023(2) [15 LM (AD) 265] ....View Full Judgment

Kabir Reza =VS= Shah Mohammad Ashraf Islam 15 LM (AD) 265
Sections 138 & 141

Taking of cognisance upon the petition of complaint filed by the Attorney upon due examination under section 200 of the Code of Criminal Procedure is "perfectly valid and appropriate". Hashibul Bashar vs Guizar Rahman and another 56 DLR (AD) 17.

Hashibul Bashar vs Guizar Rahman and another 56 DLR (AD) 17
Section 138(1) (b) (c), 141.

It does not constitute any offence or no offence shall be deemed to have been committed as alleged and as such it would be manifestly unjust to allow process of the Court to continue and would infact be an abuse of process and, therefore the proceeding is liable to be quashed. Nizam Uddin Mahmood vs Abdul Hamid Bhuiyan (Amirul Kabir Chowdhury J)(Criminal) 2ADC 793

Nizam Uddin Mahmood vs Abdul Hamid Bhuiyan 2 ADC 793
Section 138

A criminal proceeding can be quashed under section 561A of the Code of crim­inal procedure if the same does not dis­close any case or it manifestly appears that there is a legal bar against the insti­tution or continuation of the said pro­ceeding or whether the facts disclose an offence or not can only be determined on evidence being adduced. Abdul Aziz vs Khaja Abdul Gani (K. M. Hasan C. J) (Criminal) J ADC 23

Abdul Aziz vs Khaja Abdul Gani ADC 23
Section 138,141

We are, therefore, of the view that though the appellant presented the cheque on four dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the required notice on 06.11.2000, well within statutory period and as such fil­ing of the instant complaint on 11.12.2000 cannot be regarded as ille­gal. Munshi Md. Rashed Kamal vs Abdus Salam (Amirul Kabir Chowdhury J) (Criminal) 2ADC 798

Munshi Md. Rashed Kamal vs Abdus Salam 2 ADC 798
Section 138,141

In order to make a person liable under section 138 the payee of a cheque has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid in terms of clause (b) to the Proviso. S.M. Anwar Hossain vs Md. Shafiul Alam (Chand) (A.T.M. Afzal C J)(Criminal) 2ADC 879

S.M. Anwar Hossain vs Md. Shafiul Alam (Chand) 2 ADC 879
Section 138,141(b)

Section 241A of the Code of Criminal Procedure praying to discharge him but the learned Magistrate rejected the appli- cation and then the accused filed Criminal Miscellaneous Case No.5518 of 2001 under Section 561A of the Code of Criminal Procedure praying to quash the proceeding and the High Court Division by the judgment and order dated 25.06.2002 made the rule absolute quash­ing the proceeding. Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan (Md. Abdul Matin J) (Criminal) 5ADC 891

Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan 5 ADC 891
Section 138

That though the appellant presented the cheque on four dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the required notice on 06.11.2000, well within statu­tory period and as such filing of the instant complaint on 11.12.2000 cannot be regarded as illegal. It is clear that the High Court Division took a contrary view on an erroneous interpretation of the law and quashed the proceeding. The impugned judg­ment is bad in law and as such is not sustainable. Munshi Md. Rashed Kamal vs. Abdus Salam and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 357

Munshi Md. Rashed Kamal vs. Abdus Salam and another 4 ADC 357
Section 138

For non-compliance with the require­ment of Section 138(1) (b) and (c) of the Act no offence has been constituted or deemed to have been committed and as such as the proceeding has correctly been quashed. Nizam Uddin Mahmood vs. Abdul Hamid Bhuiyan and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 446

Nizam Uddin Mahmood vs. Abdul Hamid Bhuiyan and another 4 ADC 446
Section 138

Negotiable Instruments Act, 1881
Section 138
Code of Criminal Procedure, 1898
Section 540
Unreasonable order issuing summons under section 540 of the Code of Criminal Procedure for further evidence 7(seven) witnesses in a case of Negotiable Instrument Act. For ends of justice, Appellate Division’s considered view is that, it will be justified to secure the ends of justice, if an order be passed transferring the case to another competent Court of the same Sessions Division for further argument and judgment. .....Md. Nurul Islam Biplob =VS= The State, (Criminal), 2024(1) [16 LM (AD) 577] ....View Full Judgment

Md. Nurul Islam Biplob =VS= The State 16 LM (AD) 577
Section 138

Negotiable Instruments Act, 1881
Section 138
Code of Criminal Procedure
Section 561A
Evidence Act
Section 73
Without issuing any Rule has given full relief— For ensuring the ends of justice to seek expert opinion regarding the signature contained in the impugned cheque for proper and effective disposal of the case— The High Court Division without issuing any Rule has given full relief to respondent No.2 herein by disposing of the application filed under section 561A of the Code of Criminal Procedure and as such violated the settled principle of natural justice which is not permissible in law. —There is no doubt that Court is the expert of all experts. Even though since respondent No.2 prayed with a specific prayer for getting the signature on the cheque and the acknowledgement in the pad with his specimen signature kept in the Bank examined by hand writing expert, it would be wise, safe and sound to leave the matter of such examination to the expert and ask for report by scientific process or method as has been developed much better than before.
In the facts and circumstances as stated above and since the examination of the witnesses has been completed, Appellate Division is of the view that if the trial Court finds it necessary for ensuring the ends of justice to seek expert opinion regarding the signature contained in the impugned cheque for proper and effective disposal of the case then it shall be at liberty to ask for an expert opinion. —The impugned judgement and order of the High Court Division is set aside. However, the trial Court is at liberty to examine the disputed signature in the cheque in question and the acknowledgment given in the pad along with the specimen signature of the accused kept in the Bank as per the provision of section 73 of the Evidence Act. .....Md. Amam Hossain Milu =VS= The State, (Criminal), 2024(1) [16 LM (AD) 608] ....View Full Judgment

Md. Amam Hossain Milu =VS= The State 16 LM (AD) 608
Sections 138 and 140

The Negotiable Instruments Act, 1881
Sections 138 and 140
The Code of Criminal Procedure
Sections 435, 426(2A) and 561A
There is a specific provision in the Code of Criminal Procedure for preferring revisional application against the order of rejection of the bail petition filed under Section 426(2A) of the Code of Criminal Procedure–– Appellate Division’s view is that there are specific provision in Sections 426 and 435 of the Code of Criminal Procedure for bail of a convicted person and if bail petition filed by a convicted person under Section 426(2A) of the Code of Criminal Procedure is rejected, then the remedy lies under Section 435 of the Code of Criminal Procedure in “Revisional Jurisdiction”.
It appears that the High Court Division without appreciating the scope of Section 561A of the Code of Criminal Procedure and without applying its judicial mind exceeded its jurisdiction in passing the order in exercise of inherent power vide impugned judgment and orders dated 25.10.2022 which calls interference by this Division.
The convict Md. Lutful Hasan is in jail custody, it is felt that justice would be best served if he is given an opportunity to file a revisional application in the competent court of jurisdiction under Section 435 of the Code of Criminal Procedure against the impugned orders dated 26.09.2022 passed by the learned Joint Metropolitan Sessions Judge, 5th Court, Chattogram. Accordingly, the convict person i.e. Md. Lutful Hasan may file a revisional application under Section 435 of the Code of Criminal Procedure, if so advised, against the impugned orders dated 26.09.2022 within 30 (thirty) days from the date of receipt a copy of this judgment and order. .....Sajjad Hossain = Md. Lutful Hasan, (Criminal), 2023(1) [14 LM (AD) 599] ....View Full Judgment

Sajjad Hossain = Md. Lutful Hasan 14 LM (AD) 599
Section 138 (1)

Section 138 (1) is not a compoundable one. Since both the parties have settled matter amicably and the complainant received the half of the amount of the dishonoured cheque in cash and the rest of the amount was deposited with the Sessions Court filing the appeal before the High Court Division. So the sentence awarded against the petitioner is reduced to the period undergone. .....Subhash Chandra Sarker =VS= The State, (Criminal), 2023(1) [14 LM (AD) 450] ....View Full Judgment

Subhash Chandra Sarker =VS= The State 14 LM (AD) 450
Section 138

The offence under section 138 of the Act is not a natural crime like hurt or murder. It is an offence created by a legal fiction in the statute–
The offence under section 138 of the Act is not a natural crime like hurt or murder. It is an offence created by a legal fiction in the statute. It is a civil liability, transformed into a criminal liability under restricted conditions by way of an amendment of the Act. Before amendment, offending acts referred to section 138 of the Act constituted only a pure and civil liability. ...Mohammad Alauddin =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 124] ....View Full Judgment

Mohammad Alauddin =VS= The State 6 LM (AD) 124
Section 138

The cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid criminal liability–
Once issuance of cheque and signature thereon are found to be genuine, the court shall proceed with the proceeding. Question of fraud or fraudulent insertion can only be determined by recording and considering evidence by the trial Court after holding trial. If blank cheque is issued towards liability or as security, when the liability is proved, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid criminal liability.
The disputed question of fact as to the issuance of the cheque as 'security' or 'advance' or 'post dated' can only be decided upon recording evidence. All the appeals and petitions are dismissed. ...Mohammad Alauddin =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 124] ....View Full Judgment

Mohammad Alauddin =VS= The State 6 LM (AD) 124
Section 141

If a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons can not, on that score alone, escape from criminal liability created through legal fiction envisaged in section 141 of the Act.’ .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251] ....View Full Judgment

Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury 5 LM (AD) 251
Section 141(b)

The subsequent allegations will not save the limitation—the requirement unçler the law is that the complaint has to be filed within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138. [Para- 10] S. M. Anwar Hossain Vs. Md. Shafiul Alam & Am: 7BLT (AD)-218

S. M. Anwar Hossain Vs. Md. Shafiul Alam & Am: 7 BLT (AD) 218
Where the amount promised...

Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque. …Md. Abul Kaher Shahin Vs. Emran Rashid & anr., (Criminal), 14 SCOB [2020] AD 96 ....View Full Judgment

Md. Abul Kaher Shahin Vs. Emran Rashid & anr. 14 SCOB [2020] AD 96
A person issuing the cheque cannot escape...

A person issuing the cheque cannot escape liability even if there is a stoppage of payment of cheque, unless he disproves the same for the other reasons. In case a cheque issued by a person in favour of another is dishonoured by the bank for want of funds, the holder of the cheque is entitled to the amount as reflected in the cheque since cheque is a negotiable instrument governed under the Act. …Md. Abul Kaher Shahin Vs. Emran Rashid & anr., (Criminal), 14 SCOB [2020] AD 96 ....View Full Judgment

Md. Abul Kaher Shahin Vs. Emran Rashid & anr. 14 SCOB [2020] AD 96