Disputed question of facts should be decided in trial not Writ

Shamsul Alam vs. State

Reference : 60 DLR (2008) 677

Disputed question of facts should be decided in trial not Writ

Facts :

The opposite party no. 2 as complainant filed a petition of complaint against the accused petitioner stating that the accused took loan for taka 5,00,000 from him to pay the same in time. Accordingly the accused issued a cheque for the said amount and subsequently the cheque was presented for encashment but was dishonoured due to “insufficient fund”. The complainant issued a legal notice to the accused giving him time for payment of the said amount but he refused to pay. Hence the case.

The Magistrate took cognizance under sec. 138 of the Negotiable Instruments Act, 1881 (briefly the Act) and issued summons against the petitioner. Rejecting the petitioner’s application under sec. 265C of the Code of Criminal Procedure (the Code) charge was framed against him. Feeling aggrieved he preferred this application under sec. 561A of the Code and obtained the present Rule.

Arguments :

Among the two-fold arguments from the petitioner’s side the first one was : the complainant presented the cheque with the bank after the expiry of six months from the date of issue and, as such, the continuation of proceedings is an abuse of the process of the Court. They further submitted, the petitioner did not receive any legal notice and so there was no cause of action to file the instant case. Thus they submitted that there is no ingredient of sec. 138 of the Act, so the continuation of the proceedings is nothing but the abuse of the process of the court, while is liable to be quashed.

The respondent’s lawyer opposed the Rule submitting that the trial has already been concluded and the accused petitioner already examined under sec. 342 of the Code and the case is now pending for argument. So, at this stage, there is no scope to interfere with the proceedings and, as such, the Rule is liable to be discharged.


Judgment :

On going to the materials on record the court finds that all legal formalities as laid down in sec. 138 of the Act have been complied. The petitioner’s advocate gave emphasis that the accused did not receive the legal notice but from the petition of complaint it’s clear that the complainant duly served the legal notice and it was received by the accused. Whether the accused received the legal notice or not, it is merely a disputed question of fact and the same should be decided in trial.

Moreover, the cause of action of a criminal case should be ascertained in its entirety i.e. from the initiation of the proceedings to its end. For the cause of non-receiving legal notice the course of justice should not be interrupted readily and the proceedings should not be quashed.

Thus, the Rule having no merit fails and is discharged.

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