Promissory Note–It is an instrument in writing (not being a bank–note or a currency–note) containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable further time a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.
Sonali Bank vs Hare Krishna Das 49 DLR 282.

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

The cheque drawn by the accused petitioner on the bank account is not maintained in her name rather it is maintained in the name of her husband. For the purpose of Section 138(1) of the Act, the account has to be maintained by the drawer of the cheque. The liability or debt of the husband cannot be thrust on to the shoulder of the wife, the accused-petitioner. The impugned proceeding is quashed. Shahnaj Begum Munni. -Vs-The State 1 ALR (HCD) 56.

Section 13 of the Negotiable Instrument Act 1881 which has defined "Negotiable Instrument" has not made any distinction between "crossed cheque account payee" or "post-dated cheque given as a security for repayment of the loan" or " any other cheque issued by the drawer for encashment currently" or cheque of other kinds such as "bearer cheque" as ordinarily mean. Tipu Sultan - Vs. - The State 6 ALR 2015(2)190.

From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act.
Salahuddin (Md) and others vs State 51 DLR 299.

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

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.

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

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

A duty is cast upon a banker, before opening a new account of a customer to adhere to the rules and practices prevailing with regard thereto. And especially as a collecting bank it should take into consi-deration the state of the account to make sure that it is free from doubt. The central bank itself found irregularity with opening of the account and asked the defendant by a letter to refund the proceeds collected against the forged cheques. With the proven fact that the cheques are forged, recipient of the forged cheques is althrough untraced and the address given is false, the conduct of the Defendant-Appellant with its fellow banker does not seem to conform the law, practices and tradition of banking business. The defendant cannot escape its liability to pay back the money collected by it against cheques found forged. The impugned judgment and decree passed by the trial court is hereby affirmed.
Islami Bank Bangladesh Ltd. vs Agrani Bank 16 BLC 150.

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

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

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

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

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

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

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

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

Code of Criminal Procedure [V of 1898]
Section 344 read with
Negotiable Instruments Act [XXVI of 1881]
Section 138 read with
Arbitration Act [I of 2001]
Section 12
Arbitration proceedings, which is of civil nature, private rights and obligations of the respective contending parties are determined including recovery of money by way of damages for the loss caused by cheques, if any, cause of action so has arisen under section 138 of the Act and under section 12 of the Arbitration Act are altogether distinct having different entailment/consequence, as such criminal proceedings cannot be stayed.
The High Court Division held that in the instant case, pursuant to business transaction the accused petitioner entered into respective agreements with the complainant opposite party to sell agricultural products locally which were imported by the said complainant. During the course of business the accused petitioner issued 4 (four) post dated cheques in question, which were ultimately dishonoured by the drawee bank with the remark “payment stopped by drawer”. In this regard, the categorical assertion of the opposite party is that vide clause 3.4 of the agreement the opposite party company can take any legal action against the petitioner under the Act of 1881 if the cheques are dishonoured for any reason whatsoever. As such, merely because there is arbitration proceeding pending under section 12 of the arbitration in between the contending parties the proceeding under section 138 of the Act cannot be stayed. Mushfequr Rahman -Vs.- The State (Criminal) 2019 ALR (HCD) Online 155 ....View Full Judgment

A plain reading of subsection (1) of the Section 138 of the Act, 1881 shows that an offence under this section shall be deemed to have been committed, the moment a cheque drawn by a person on an account maintained by him with a bank for payment of any amount of money to another person from out of that account is bounced by the bank unpaid on any of the grounds mentioned therein. Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the money as alleged by the accused or any other cheque issued by the drawer from encashment currently. The legislature has not made any difference between a post dated cheque issued as security and a cheque issued for encashment currently. I do not see any scope of making any such difference. …Md. Zakir Hussain Vs. Md. Jalal Khan and another, 1 SCOB [2015] HCD 52 ....View Full Judgment

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

Secondly, if the Magistrate takes cognizance and issues summons against the accused-director despite non-making clearer description about the responsibility of the said accused-director, then, as per the Indian Supreme Court’s view, the order of issuance of summons is liable to be quashed. But nothing has been said by the Indian Supreme Court about the next step available for the complainant, given that the offence under Section 138 of the NI Act having been duly constituted remains intact following quashing the Magistrate’s Order of issuance of summon/warrant. When an accused is discharged from or acquitted of the accusation of a criminal charge by a trial Court, the status of a criminal offence becomes non-est. Also, when a criminal case is quashed by this Court on the ground of non-disclosure of any offence, irrespective of the said case’s stage - be it at the investigation stage or trial or post-trial stage, the offence is wiped out. But, if a criminal case is quashed merely on the ground of procedural illegality, be it happens after completion of its trial or during trial or at the investigation stage, the High Court Division’s duty is to express its view as to what would be the next step for the informant/complainant following quashment of the impugned order/proceedings. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Whether a criminal case under Section 138 read with Section 140 NI act is liable to be quashed on the ground of non-impleadment of the company.
If the offence under Section 138 of the NI Act have been duly constituted and the case was filed within time against the signatory of the cheque and/or the directors and/or the officers of the company, in that scenario, the case shall not fail for non-mentioning of the name of the company in the petition of complaint, subject to the condition that the charge must be framed against the company and, on behalf of the company, the members of the BoD shall answer the charge. The rationale behind is that had the company been arrayed as the accused, it was the director/s of the company who had to face the trial by answering the charge/s framed against the company. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Guidelines for the Magistrates who are assigned to take cognizance of the offence under Sections 138 and 140 NI Act.
No complaint-petition under Section 138 read with Section 140 of the NI Act shall be entertained by a Magistrate unless the following conditions are fulfilled.
(i) The company must be named in the petition of complaint as the No. 1 accused.
(ii) The signatory of the cheque shall be made accused No. 2 in the petition of complaint.
(iii) If any director is arraigned as accused, the nature of responsibility of the said director with her/his designation/portfolio in the company must be made clearly.
(iv) The petition of complaint must contain a statement to the effect that the accused-director/s are in charge of, and responsible to, the company for the conduct of the business of the company.
(v) A copy of the Articles & Memorandum of Association and a copy of the Form XII of the accused-company must be annexed to the petition of complaint so as to satisfy the Magistrate that the accused-director/s are in charge of the company at the material time of issuance/dishonoring of the cheque.
(vi) Evidence must be enclosed to the complaint-petition to substantiate the fact that notice under clause (b) to Section 138(1) of the NI Act has been served in any of the three manners enshrined in Section 138 (IA) of the NI Act.
(vii) A copy of the reply, if any, to the demand/legal notice for payment of the cheque-amount must be produced before the Magistrate.
(viii) If the complainant claims that s/he has not received any reply to the demand/legal notice, in that scenario, there must be a clearer statement in the complaint-petition about its non-receipt.
(2) The Magistrate must not hesitate to ask the complainant to come back with fresh application containing the above-noted statements together with the aforesaid annexures/documents.
(3) If the Magistrate finds it to be an appropriate case to carry out a judicial enquiry about the nature of responsibility of the accused-director before taking cognizance, the Magistrate should take necessary step/s for heading towards judicial enquiry.
4) The Magistrate should follow the above directives in addition to the guide-lines laid down in the case of Aleya Vs State 70 DLR 303 (Para-26). Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) On-line 230 ....View Full Judgment

Taking cognizance of “deemed guilt” and “proved guilt” as provided in Section 140 NI Act.
Although Section 140 of the NI Act, as a whole, speaks about three categories of accused persons, namely, (1) the company, (ii) every person who was in charge of, and responsible to, the accused-company at the time of commission of offence and (iii) any director, manager, secretary or other officer of the accused-company who has consented to, or connived with, commission of any offence under the NI Act, including the of¬fence under Section 138 of the Act, however, only the first two categories of the persons namely, (i) the company and (ii) every persons who are in charge of, and responsible to, the company, may be proceeded against on the basis of their ‘deemed guilt’; and in order to proceed against the third category of person/s, a ‘proved guilt’ is required. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

When the offence is committed by a company, the ‘deemed guilt’ is primarily attached to the members of the BoD in addition to the signatory of the cheque and the company inasmuch as after dishonouring of a cheque issued by a company, when the said company decides not to pay off the cheque-amount despite receiving demand/legal notice, the said decision is to be seen and taken as a serious business of the company and for the said type of conduct of business of the company, it is quite commonsensical to deem that all the members of the BoD jointly and individually were aware of the said decision having foreseen its legal consequence and, thereby, they are to be deemed to be guilty for non-payment of the cheque amount. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Reasons for impleading the directors of the company in a case under Section 138 read with Section 140 NI Act. Company is a juristic person and its Board of Directors acts as its body and mind. All the powers of management of the affairs of the company are vested in the BoD and, thus, the Board becomes the working organ of the company. The BoD is, therefore, considered to be the company’s supreme authority which consists of the directors of the company. That is how, the directors remain responsible for the company’s management, which includes taking/making loan and repayment thereof. For this reason, it is fairly reasonable for a person, who is having a transaction with a company, to presume that the directors of the company are in charge of the affairs of the company. If any restrictions of their powers are placed by the Memorandum or Articles of the company, it is for the directors to establish it at the trial. It is in that context that Section 140 of the NI Act provides that when the offender is a company, every person, who at the time when the of-fence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the of-fence along with the company. Therefore, when simply an allegation in the com¬plaint would be made stating that the named accuseds are directors of the company, it would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In other words, the requirement of disclosing an offence against an accused-director of a company, in the cheque-dishonouring criminal cases, is to be taken to have been fulfilled by the complainant if the names of the directors are mentioned in the column of the accused and the supporting documents as to holding the post of director, such as the Articles & Memorandum of Association and Form XII of the accused-company, are annexed to the complaint-petition. It leads us to hold that since a company, being a juristic person, operates through the BoD consisting of the Chairman, Managing Director, Joint/Deputy Managing Director and other Directors, the members of the BoD normally be impleaded as accused for their ‘deemed guilt’ along with the company when there arises an occasion by anybody to file a criminal case against the company. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Negotiable Instruments Act [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 200
Way-out for a director of the company to delist his/her name from the category of the accused. Without facing rigour of trial of such an accusation, there is a way-out for a director of a company to obliterate her/his name from the list of the accused-person if s/he had specifically denied the liability of dishonouring the cheque by replying to the demand/legal notice upon enclosing the corroborating-papers/documents therewith in substantiating her aforesaid denial. Usually, upon receipt of the petition of complaint under Section 138 of the NI Act, the Magistrate would decide to take cognizance on the basis of averments made in the petition of complaint, statements recorded under Section 200 of the CrPC and the annexed papers, which include the dishonoured-cheque, bank-slip containing information as to dishonouring the cheque, the demand/legal notice with hand-acknowledgment/registered receipt or notification in the daily national newspaper and the reply to the demand/legal notice. When a Magistrate would have the opportunity to peruse the reply to the demand/legal notice containing specific denial by a director as to absence of her/his knowledge about issuance/ dishonouring of the cheque or her/his resignation from the company be-fore issuance of the cheque, the Magistrate is duty bound to consider the same and, thereby, decide as to whether cognizance should be taken against the said accused-director, for, issuance of a demand/legal notice and a reply thereto are the essential components of constituting an offence under Section 138 of the NI Act. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

If the complainant claims before the Magistrate that no reply to the demand notice was made by the accused and, later on, at the stage of framing charge the accused can satisfy the trial Court that in spite of her/his reply detailing her/his non-involvement in the conduct of the business of the company upon appending document in its support, the complainant had not produced it before the Magistrate or despite of its production before the Court, the cognizance-taking Magistrate failed to consider it, in that scenario, the trial Court would be in a position to discharge her/him from the charge or, if s/he approaches this Court directly, this Court may quash the proceedings so for as it relates to the aforesaid accused who had clarified her/his position by replying to the demand/legal notice by denying any involvement in the conduct of the business of the company upon enclosing the authentic document/papers in substantiating the aforesaid claim. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

It is important to bear in mind that in the cases under Sections 138 and 140 of NI Act, the accused is entitled to seek discharge relying upon the contents of a reply to the demand/legal notice, for, the same is a prosecution material and, accordingly, the accused is also competent to approach this Court on the basis of the said material in addition to any other prosecution material, subject to the condition that the contents of the reply together with its annexed document are either conceded by the complainant or, if disputed by the complainant, it appears to the trial Court/this Court that the same does not require any formal proof through producing evidence before the trial Court. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

View of Indian Supreme Court about impleading the Director/s of the Company in a case under Section 138 read with 140 NI Act.
From a plain reading of all the cases referred to from the Indian jurisdiction, it is our understanding that in the cited cases there was no dispute about commission of an of¬fence under Section 138 of the NI Act by the company and its director/s. So, in the cited cases, offence was there, the offenders were there and the of¬fenders were named as the company and its BoD. But the Indian Supreme Court took the view that unless the complainant makes any averment about the responsibility of the director in the transaction in question, no cognizance is to be taken and no summon/warrant to be issued against the said director. In other words, the Indian Supreme Court laid down a principle that for taking cognizance of an offence under Sections 138 & 140 of the NI Act against a director of a company, there must be a specific allegation in the complaint-petition against a director specifying the accused-director’s nature of responsibility and duties in the said company. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

The Negotiable Instruments Act, 1881 [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 342
When the cheques in question were dishonoured due to insufficiency of fund, the plea taken by the accused petitioner that he has not put his signature in the cheques should not be considered positively for the reason. The High Court Division held that if there would have appeared any dissimilarity of signatures given by the drawer of the cheques, the bank manager would have definitely written that the signatures of the cheques are not similar and in that case he had returned back the cheques as unpaid due to dissimilarity of the drawer’s signature. But in the instant cases, no such remarks were passed by the bank manager at the time when the cheques were returned back as unpaid. Rather, he has dishonoured the cheques due to insufficiency of fund in the account of the accused petitioner. The High Court Division finds no merit in these Rule. Md. Abul Hashem -Vs.- The State and another. (Criminal) 2019 ALR (HCD) Online 82 ....View Full Judgment

The Negotiable Instruments Act, 1881 [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 561A
An offence under section 138 of the Negotiable Instrument Act is committed if the cheque is dishonoured, so a criminal proceeding under section 138 can be proceeded independently of the civil suit. The High Court Division held that admittedly the bank filed Artharin suit against the present petitioner for huge amount and as per the case of the Rule petitioner the said suit was decreed for taka more than 11,00,00000/- (eleven crore) whereas the case in question under section 138 of the Negotiable Instrument Act is only for 10,00,000/-(ten lacs).There is nothing be-fore us to show that the transaction is same. However, the main grievance of the Rule petitioner is that since the bank has already filed a case for realization of money, the bank cannot file a case under section 138 of the Negotiable Instrument Act against the petitioner and the continuation of the proceeding under section 138 is nothing but the abuse of the process of the Court. But the law is settled now, that in the case of Manjur Alam Vs. State 55 DLR (AD) page 62 it has been held by the Appellate Division that an offence under section 138 of the Negotiable Instrument Act is committed if the cheque is dishonoured, so a criminal proceeding under section 138 can be proceeded independently of the civil suit. The same view appears to have been taken in the case of Khandaker Mahbub Uddin Vs. State 49 DLR page 132.In the suit case this Division held that there is nothing in law precluding a criminal case on acount of civil suit pending against the petitioner on the same fact, the criminal case stand for the offence while the civil suit is for realization of money and both can stand together. Having regards to the above decision of this Court the High Court Division finds it difficult to discover any case in support of the Rule petitioner. As such, the High Court Division finds no merit in the Rule. In the result, the Rule is discharged. Md. Sirajul Islam. -Vs- The State. (Criminal) 2019 ALR (HCD) Online 172 ....View Full Judgment

Negotiable Instruments Act [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 265C
If the cheque deposited after expiry of its validity as per section 138(1)(a) of the Negotiable Instruments Act then the accuseds will get benefit upon adducing evidence in the trial. But at the stage of framing charge, trial Court is not under obligation to judge truth, veracity and effect of the evidence thoroughly and meticulously.
The High Court Division held that in framing charge, learned Additional Metropolitan Sessions Judge was restricticed to find out whether there was a primafacie case or not for proceeding the accuseds and could not enter into a detailed discussions of the merits or demerits of the case. In revisional jurisdiction, the High Court Division cannot, in our opinion, launch on a detailed and meticulous examination of the case on merits and cannot judge truth, veracity and effect of the evidence in disposing revisional application filed against the order of framing charge. Rashiduzzaman Millat and another -Vs.-The State and another (Criminal) 2019 ALR (HCD) Online 344 ....View Full Judgment

Section ‘138A’ has been inserted in Negotiable Instruments Act, 1881 by section 3 of the Negotiable Instruments (Amendment) Act, 2006 (Act No. III of 2006). The provision of section 138A is clear and unambiguous. By inserting section 138A in the original NI Act, 1881 the parliament has intentionally made a bar in preferring an appeal against 4 any order of sentence under sub-section (1) of section 138. By using the words “notwithstanding anything contained in the Code of Criminal Procedure, 1898” and the words “unless an amount of not less than fifty per cent of the amount of the dishonored cheque is deposited before filing the appeal in the Court which awarded the sentence” clearly suggest that the provisions of the code of criminal procedure in respect of preferring appeal under NI Act will not be applicable and before filing the appeal 50% of the amount of the dishonored cheque is to be deposited in the Court which awarded the sentence (underlined to give emphases). The Court which awarded the sentence specifically indicates that said amount must be deposited in the Court who awarded the sentence, nothing more nothing less inasmuch as that after awarding sentence under sub-section (1) of section 138, receipt of even total dues by the complainant from the convict will not fulfill the requirement of section 138A of the NI Act. Mohammad Abdul Kader alias Karim -Vs.- The State (Criminal) 2019 ALR (HCD) Online 209 ....View Full Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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.

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.

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.

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.

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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