LEX/BDHC/0028/2015

Equivalent Citation: 67 DLR (2015) 354

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 382 of 2014
Decided On: 09.03.2015
Appellants: Aminul Karim (Md.)
Vs.
Respondent: Government of Bangladesh and Ors.
Hon'ble Judges/Coram:
Md. Ashfaqul Islam and Kashefa Hussain, JJ.
JUDGMENT
Md. Ashfaqul Islam, J.
1. At the instance of the petitioner, Md Aminul Karim, this Rule Nisi was issued in the
following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to
why the impugned proceeding of Sessions Case No. 2452 of 2013 arising out
of CR Case No. 781 of 2013 under sections 138/140 of the Negotiable
Instrument Act, 1881 now pending before the learned Metropolitan Sessions
Judge Court, Chittagong by respondent No. 3 in addition to Artha Rin Suit for
recovery of loan amount should not be declared to have been initiated
without lawful authority and is of no legal effect. At the time of issuance of
the Rule all further proceedings of, Sessions Case No. 2452 of 2013 was
stayed by this Division.
The background leading to the Rule, in short, is that the petitioner is the Managing
Director of M/s. AK Enterprise, a private limited company/The said company availed
credit facilities of the respondent No. 3 Sonali Bank Limited, Agrabad Corporate
Branch, Chittagong and failed to adjust its loan liability. The respondent No. 3 Sonali
bank on 8-10-2013 instituted Artha Rin Suit No. 308 of 2013 before the Artha Rin
Adalat, First Court, Chittagong (hereinafter referred to as Adalat) for recovery of loan
which was sanctioned earlier in favour of the company. The petitioner himself was
impleaded as defendant No. 2 in the suit. The suit was instituted claiming Taka
45,93,80,103 which includes full amount of loan and interest.
2 . It has been further stated that respondent No. 3 as complainant on 13-5-2013
filed CR Case No. 781 of 2013 in the Court; of Chief Metropolitan Magistrate,
Chittagong under sections 138/140 of the Negotiable Instrument Act, 1881
(hereinafter referred to as Act) against the petitioner alleging an offence that
happened in the complainant's office (Sonali Bank) when the cheque was
dishonoured. According to the contents of the said complaint, the petitioner issued a
cheque of Pubali Bank, Khatungonj Branch being No. 9724939 dated 29-11-2012 for
an amount of Taka 80,00,00,000 (eighty crore only) in favour of the complainant.
Thereafter on 7-3-2013 the complainant deposited the said cheque for encashment
but the same was returned unpaid for insufficient fund. The complainant served legal
notice on 18-3-2013 upon the petitioner to pay the amount within 30 (thirty) days.

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But the petitioner did not pay off the dues. (Annexure-B).
3 . The Chief Metropolitan Magistrate, Chittagong after examination of the
complainant under section 200 of the Code of Criminal Procedure was pleased to take
cognizance against the petitioner under section 138 of the Negotiable Instrument Act
and issued summons upon the petitioner. Subsequently, the petitioner voluntarily
surrendered before the Court below and obtained bail. The Complainant bank also
filed another case against the petitioner under sections 406/420 of the Penal Code
and the proceeding was issued by the Chief Metropolitan Magistrate Court directing to
send the same to Double Mooring Police Station to treat the petition as FIR and Police
Station sent the same to the Court being Double Mooring Police Station Case No. 12
of 2013. It is at this stage the petitioner who is also an accused in the aforesaid two
criminal cases moved this Division and obtained the present Rule and order of stay.
4 . None appears for the petitioner though this writ petition came up for hearing on
different occasions.
5. From the statement of facts and the grounds of the petition it seems that the crux
of the petitioner's case is that the cheques which are the subject matter in the
criminal case were also furnished as security for discharging the loan liability of the
petitioner engendering Artha Rin Suit No. 308 of 2013 and for that reason the
continuation of the proceeding under section 138 of the Act is illegal and should be
declared to have been passed without lawful authority having no legal effect.
6. Mr. SM Kafil Uddin, the learned counsel appearing for the respondent No. 3- bank,
on the other hand, by filing affidavit-in-opposition opposes the Rule and mainly
submits that to challenge the criminal proceeding, there is a special provision in the
Code of Criminal Proceedings and the writ petition is not maintainable and the
petitioner have chosen wrong forum. In elaborating his submissions the learned
counsel further submits that the petitioner is not an aggrieved person since in the
instant petition he did not challenge any order of the Artha Rin Adalat nor he has
challenged any law rather he has taken a different course impugning the proceedings
of Sessions Case No. 2452 of 2013 arising out of CR Case No. 781 of 2013, which is
a different proceeding altogether against the petitioner. By any stretch of imagination
this proceeding which has arisen for dishonour of a cheque for insufficient fund
cannot have any bearing upon the proceeding of Artha Rin Adalat and for that reason
the same should not be stayed. The learned counsel in support of his contention
placed reliance in the decision of Majed Hossain vs. State, 17 BLC (AD) 177.
Therefore, he submits that in all fairness this Rule should be discharged outright.
7 . We have heard the learned counsel for the respondent-bank and considered his
submissions. We have also gone through the petition and other materials on record
carefully. At the very outset we would like to clear that though this writ petition
appeared in the daily cause list on several occasions but the petitioner did not turn
up ultimately. In the case of Dr. Md Shahjahan, Advocate vs The Election
Commission, LEX/BDHC/0039/2011 : 63 DLR 543 this Division held that if in any
particular case the ratio decidendi of Appellate Division applies directly or where the
case in hand has already been decided by the same Division Bench, the writ petition
can be heard on merit without hearing the petitioner.
8 . Let us now digress to the case in hand. Admittedly respondent No. 3-bank filed
the complaint case on 13-5-2013 being CR Case No. 781 of 2013 in the Court of
Chief Metropolitan Magistrate, Chittagong under sections 138/140 of the Act against

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the petitioner and it is also admitted that respondent No. 3 filed Artha Rin Suit on 8-
10-2013 being Artha Rin Suit No. 308 of 2013 which is pending before the Artha Rin
Adalat, 1st Court, Chittagong. Be it mentioned that the CR No. 781 of 2013 was filed
earlier in point of time of the Artha Rin Suit No. 308 of 2013. Now, the point that has
been advanced by the petitioner is that the cheques which are the subject matter in
the Criminal case were furnished as security for discharging the loan liability of the
petitioner engendering Artha Rin Suit No. 308 of 2013 for that reason the
continuation of the proceeding under section 138 of the Act is illegal and should be
declared to have been passed without lawful authority having no legal effect. But we
are unable to subscribe ourselves with the said point advanced in its true spirit and
purport. The proposition of law which is consistent and no longer a res integra is that
a criminal case and civil case though arising out of the same transaction can proceed
simultaneously. The case of Monzur Alam vs State 55 DLR (AD) 62 and Shamsul
Islam Chowdhury vs State 11 BLC 116 are the authorities on the point.
9 . In Monsur Alam's case our Appellate Division upheld the decision of the High
Court Division discharging the Rule arising and of section 138 of the Negotiable
Instrument Act. High Court Division while discharging the Rule did not accept the
contention that where the facts reveal that the transaction in question involves civil
liability no criminal proceeding will lie and the criminal cases are liable to be
quashed.
10. Appellate Division upheld the said decision of the High Court holding:--
"We have considered the submissions of the learned Advocate and gone
through the judgment and find no substance in the submission of the learned
Advocate since 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. Moreover, since
there is a prima facie case the criminal cases cannot also be quashed.
Therefore, the High Court Division did not commit any illegality or made any
error in law by holding that the pendency of the civil suit will not be
hindrance to proceed with the criminal cases."
11. The same view have been taken in Khondaker Mahtabuddin Ahmed vs State 49
DLR (AD) 132 and in Shamsul Islam case 11 BLC 116 that there is nothing in law
precluding a criminal case on account of a civil suit pending against the petitioners
on the same facts. The criminal case stands for the offence, while the civil suit is for
realization of money. Both can stand together.
12. In the present case ratio decidendi of the decision referred to above in 77 BLC
(AD) 177 applies squarely even factually. In that decision our Appellate Division
clearly observed:
"The next point to be decided is whether a proceeding under section 138 of
the Act, 1881 would lie against the drawer of the unpaid/dishonoured
cheque(s) when it/he obtained the loan (here the accused petitioners) by
creating equitable mortgage and the complainant company had the option to
recover the loan money by selling the mortgaged property even the
cheque(s) returned unpaid as argued by Mr. Chowdhury.
A close reading of sub-section (1) of section 138 of the Act, 1881 shows that
it has noting to do with the recovery of loan amount. The whole scheme of

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 the law as discussed hereinbefore, is to haul up the drawer of the
unpaid/dishonoured cheque(s) for not arranging the funds against the
issuance of such cheque(s) and then its/his failure to make the payment of
the amount of the money of the unpaid/dishonoured cheque(s) on demand
by the payee or, as the case be, by the holder in due course of the cheque(s)
in writing within thirty days of the receipt of such notice as provided in
clauses (b) and (c) respectively of sub-section (1) of section 138 of the Act,
1881..
As discussed above, an offence under section 138(1) of the Act, 1881 shall
be deemed to have been committed when any cheque(s) drawn by a person
on an account maintained by him with a banker for payment of any amount
of money to another person from out of that account is returned by the bank
unpaid for the reasons stated therein and such unpaid/dishonoured
cheque(s) gives rise to initial cause of action to the payee, or, as the case
may be, to the holder in due course of the cheque(s) for filing a petition of
complaint as provided in clause (a) of section 141 of the Act, 1881 subject to
fulfillment of the conditions as detailed in clauses (a)(b) and (c) of the
proviso to sub-section (1) of section 138 of the Act, 1981 and attain its
maturity after the drawer of such unpaid dishonoured cheque(s) fails to make
the payment of the amount of money of such cheque(s) within the period of
thirty days of the receipt of the notice served under clause (b). In this
regard, it is also significant to note that subsection (3) of section 138 of the
Act, 1881 has clearly provided that notwithstanding anything contained in
sub-sections (1) and (2) thereof, the holder of the cheque(s) shall retain his
right to establish his claim through civil Court if whole or any part of the
value of the cheque(s) remains unrealized."
13. By bringing this writ petition a feeble attempt has been made to frustrate the
complaint case tinder Negotiable Instrument Act.
14. Fortified with all these decisions which are definitely focused on the issue, we
are of the view that this writ petition is totally misconceived and bereft of any
substance whatsoever which should be discharged with cost. In the result, the Rule is
discharged with cost. The order of stay granted earlier by this Court is hereby
recalled and vacated.
Communicate this order at once.
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