LEX/BDHC/0012/2018

Equivalent Citation: 70 DLR (2018) 303

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Criminal Miscellaneous Case No. 25848 of 2017
Decided On: 20.02.2018
Appellants: Aleya
Vs.
Respondent: State and Ors.
Hon'ble Judges:
Md. Rezaul Haque and Muhammad Khurshid Alam Sarkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sikder Mahmudur Razi and Manoj Kumar Bhowmick,
Advocates
Case Note:
Criminal - Quashing of proceedings - Cheque bounce - Section 138 of
Negotiable Instruments Act, 1881 - Petition filed for quashing of proceedings
in case under Section 138 of Act - Whether Petitioner made out case for
quashing of proceedings - Held, it did not appear that prosecution story was
preposterous - Proceedings could not be quashed on ground of
preposterousness - Payee was required to satisfy Court conditions at time of
taking cognizance - Complainant placed cheque within six months of its
issuance of cheque and same was presented for encashment - Requirement of
Section 138 of Act has been satisfied - Initiation of proceedings on basis of
second notice was not legal and taking cognizance of complaint by Magistrate
was also not legal - Continuation of proceedings was an abuse of process of
Court - Proceedings quashed - Rule made absolute. [8], [14], [16], [20]
JUDGMENT
Muhammad Khurshid Alam Sarkar, J.
1. At the instance of the above named accused-petitioner (hereinafter referred to as the
accused or the accused-lady), this application has been filed in an expectation to quash
the proceedings of Sessions Case No. 714 of 2015 corresponding to CR Case No. 209 of
2015, under section 138 of the Negotiable Instruments Act, 1881 (NI Act) now pending
before the Court of Additional Sessions Judge, 1st Court, Faridpur, by invoking this
Court's power of quashment under section 561A of the Code of Criminal Procedure,
1898 (CrPC). The background of issuance of this Rule, in short, is that one Mr. Oli Mia,
the payee-complainant-opposite party No. 2 (hereinafter referred to as the complainant
or the payee-complainant), as the complainant, filed a complaint petition before the
Magistrate Court with a prayer for taking cognizance of an offence publishable under
section 138 of NI Act against the accused alleging, inter alia, that when the complainant
was in a good relationship with the accused, the accused-lady took loan of Taka
40,00,000 (forty lacs) from the complainant with a promise to pay off the money after
three months and as a security she issued a cheque bearing No. 01X-0286304 dated 1-
1-2015 covering the aforesaid loan' amount. After expiry of the moratorium of 3(three)

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months, on 20-4-2015 the complainant placed the cheque before the concerned bank
for its encashment but the same was dishonored due to insufficiency of funds.
Thereafter, the engaged Advocate of the complainant, issued two separate legal notices,
one on 26-4-2015 by registered post with A/D which allegedly was sent back by the
accused on 6-5-2015, instead of receiving it, and another on 22-5-2015 through a
newspaper. However, the accused did not repay the loan amount. Therefore, on 16-7-
2015 the complainant filed the instant case under section 138 of the NI Act, 1881 and
after examining the complainant under section 200 of the CrPC, the learned Judicial
Magistrate took cognizance of the case and issued process against the accused and,
then, the accused upon surrendering herself before the learned Magistrate obtained bail.
On 29-11-2015, the accused filed an application before the trial Court under section
265C of the CrPC for discharging her from the accusation brought against her and
eventually the said application, having heard on 17-10-2016, was rejected and charge
was framed against the accused under section 138 of the NI Act and when the charge
was read over to her, she pleaded not guilty and the trial Court, then, fixed a date for
examination of witnesses. Having failed to get discharged from the accusation from the
trial Court, now the accused is seeking quashment of the case.
2. Mr. Sikder Mahmudur Razi, the learned Advocate appearing on behalf of the accused-
petitioner, takes us through the petition of complaint and draws our attention to the
dates of placing the cheque, sending legal notice by registered post & returning of the
same without being received, publication of notice in the daily newspaper, filing of the
complaint petition and, side-by-side, also takes us through the provisions of sections
138 & 141 of the NI Act and submits that no offence is disclosed in the petition of
complaint under the aforesaid provisions of law and, thus, continuation of the
proceedings in question is an abuse of the process of the Court. He submits that this
Miscellaneous Case under section 561A of the CrPC deserves to be considered positively
by this Court and to substantiate his submission, he refers to the case of SM Anwar
Hossain v. Shafiul Alam, 4 BLC (AD) 106. Then, Mr. Razi takes us through the
application filed by the accused under section 265C of the CrPC and contends that the
complainant managed to steal a blank cheque from the accused, capitalizing on their
intimacy and, eventually, when the accused filed a criminal case under sections 9(1) &
10 of the Nari-o-Shishu Nirjaton Daman Ain, 2000 read with section 57 of the Taththa
Prozukti Ain, 2006, the complainant used the said stolen cheque to file this false case,
with forged signature of the accused. In this connection, he further contends that the
story of taking loan by the accused-lady from the complainant during pendency of the
Nari-o-Shishu Case No. 127 of 2015 filed by the accused-lady against the complainant,
amply suggests that the case is preposterous, as no human being with ordinary
prudence would believe the above story. Mr. Sikder Mahmudur Razi submits that there
are scores of case laws of our jurisdiction and that of this sub-continent that a
preposterous criminal case should be nipped in the bud by the High Court Division
exercising its power under section 561A of the CrPC. In support of his above
submissions, he refers to the case of Syed Ehsan Abdullah v. State 2017(1) L&J 135.
3 . By making the above submissions, the learned Advocate for the accused-petitioner
prays for quashing the impugned proceedings of Sessions Case No. 714 of 2015
corresponding to Bhanga CR Case No. 209 of 2015, under section 138 of the NI Act and
to make the Rule absolute.
4. Per contra, Mr. Md Jafor Ali, the learned Advocate for the complainant-opposite party
No. 2, by taking us through the averments of the accused application under section
265C of the CrPC, contends that admittedly there was a love affair between the
complainant & the accused and, taking advantage of the relationship, when the accused-

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lady requested the complainant to help her by giving loan of Taka 40,00,000 (forty
lacs), the complainant had agreed to help her by taking the cheque in question from the
accused-lady. He further contends that the accused-lady, later on, filed Nari-o-Shishu
case against the complainant as a weapon in an attempt to save herself from repayment
of the loan money. He then takes us through the petition of complaint and submits that
whether the legal notice was sent or published within the statutory period or if the case
has been filed within the time are the questions of fact to be decided by the trial Court
by taking evidence. By referring to the case of Zahidul Islam v. Md Kamal Hossain, 66
DLR (AD) 180, Mr. Jafor Ali endeavours to persuade us that if filing of a case under
section 138 of the NI Act before the stipulated period is permitted in law, then there
should not be an absolute bar to file a case under section 138 of the NI Act after expiry
of the prescribed period of sending written demand notice.
5 . From hearing of the submissions of both the sides, perusal of the quashment
application together with its annexures and reading of the relevant laws and decisions
placed before us, two issues come up for our examination, which are; (1) whether this
case should be nipped in the bud on the ground that the story of the case is
preposterous and (2) whether the proceedings in question require to be quashed on the
ground that the complaint petition discloses no offence under section 138 of the NI Act.
6. The recognized principle for quashing of a criminal case by this Court by exercising
its inherent power on the ground of preposterousness is that a plain perusal of an
FIR/petition of complaint shall inevitably give an understanding to its reader that its
version is so absurd that ex-facie it transpires to be contrary to nature, reason or
common sense. In the case of Syed Ehsan Abdullah v. State 9 ALR 2017(1) 80 (Para
27), it was observed that;
"The test is that taking the allegations and the complaint as they are, if the High
Court Division in exercising its inherent power without embarking upon an
inquiry as to the truth or falsehood of the allegations made against the accused
person finds that no offence is constituted, then there would be an occasion to
bury the proceedings. The authenticity or falsity of the statement made in the
FIR/complaint should be decided at the trial on taking evidence in support of
the prosecution case and a complainant, who has disclosed a prima facie case
in his complaint, must be given an opportunity of placing materials on which he
bases his complaint before the Court through producing evidences before
quashing the proceeding."
7 . However, in reality there is hardly any case, preposterousness of which can be
noticed from the mere reading of the FIR/petition of complaint, because, generally, in a
criminal case the absurd nature of the prosecution version becomes surfaced only when
the accused files an application under section 241A/265C of the CrPC for getting
discharged from the accusation, but it is trite in our criminal trial procedure that
defence version should not be taken into consideration by the trial Court at the stage of
framing charge.
8 . In this case, the accused, by filing an application under section 265C of the CrPC,
alleges that during pendency of the Nari-o-Shishu Case No. 127 of 2015 between the
accused-lady and the complainant, it is simply an absurd story of issuance of a cheque
in favour of the complainant by the accused-lady. The above apparent-absurdity aspect
of the case being a defence version, this Court or the trial Court is not in a position to
ascertain the veracity of the same without taking any evidence. This is because from a
bare reading of the petition of complaint of the case, we do not find the prosecution

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story to be a preposterous one. Thus, the proceedings in question cannot be quashed
on the ground of preposterousness.
9 . Let us now see whether the proceedings in question deserve to be quashed on the
ground that the requirements of sections 138 & 141 of the NI Act having not been
fulfilled, no offence is disclosed in the petition of complaint. In order to examine the
above issue, it would be useful at first to look at the provisions of section 138(1) of the
NI Act, which are reproduced below:
138. Dishonour of cheque for insufficiency, etc. of funds in the account-(1).
Where any cheque 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, either because of the amount of money
standing to the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account by an
agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions of
this Act, be punished with imprisonment for a term which may extend to one
year, or with fine which may extend to thrice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice, in writing, to the drawer
of the cheque, within thirty days of the receipt of information
by him from the bank regarding the return of the cheque as
unpaid, and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to
the holder in due course of the cheque, within thirty days of
the receipt of the said notice.
(emphasis supplied)
10. While the main part of section 138(1) of the NI Act provides the definition of an
offence, identity of the offender and the quantum of punishment, its Proviso sets out
three conditions for application of the main provision. The first condition is that the
cheque should be presented to the bank within six months of its issuance or within six
months of its validity, whichever is earlier, as many times as the issuer/drawer of the
cheque instructs the payee to present it. In absence of any mentioning in clause (a) of
the Proviso to section 138(1) of the NI Act about on how many occasions the cheque
may be presented and, further, there being no bar to place the cheque to the bank for
more than once, in our opinion, the cheque may be presented to the bank as many
times as the payee wishes before expiry of six months of its issuance or its validity. The
second condition is that the payee should make a written demand for payment either in
person or by registered post or by publication in a national Bangla newspaper within
thirty days of being informed about dishonoring of the cheque and in view of employing

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the word 'a' in the sentence 'makes a demand for the payment.........', we hold that
making written demand only for once is allowed and the third condition is that the
drawer fails to pay the amount within thirty days of the receipt of the notice. In
calculation of the time-limits stipulated in clauses (b) and (c) of the Proviso to section
138(1) of the NI Act, it is vital to note that the counting of time stipulated in clause (b)
should be started from the date of receiving the information from the bank regarding
dishonouring of the cheque; not from the date of dishonouring the cheque. While, in
practice, mostly the date of dishonouring of the cheque and the date of receiving
information from the bank about the dishonouring of cheque are the same date,
however, there may be cases where the payee might be notified by the bank about
dishonouring the cheque on a later date. Similarly, counting of thirty days stipulated in
clause (c) of the Proviso to section 138 of the NI Act should be commenced from the
date of receiving the notice issued by the payee and, thus, calculation of thirty days
should not be counted from the date of sending the demand notice. When all these
three conditions are satisfied, only then a criminal case can be launched for the offence
punishable under section 138 of the NI Act. The provisions of section 138(1) of the NI
Act, thus, are about the nature of an offence under section 138(1) and conditions for its
application.
1 1 . Let us now look at the provisions of section 141 of the NI Act, which run as
follows:
141. Cognizance of offences-Notwithstanding anything contained in the Code
of Criminal Procedure, 1898 (Act V of 1898)-
(a) no Court shall take cognizance of any offence punishable under
section 138 except upon a complaint, in writing, made by the payee or,
as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to section 138;
(c) no Court inferior to that of a Court of Sessions shall try any offence
punishable under section 138.
12. From a bare reading of the above provisions, it appears that clause (a) stipulates as
to who can make a complaint under section 138 of the NI Act and how it can be made,
clause (b) makes provisions for time-limitation for filing the case under section 138 of
the NI Act and clause (c) provides the forum for trial of the offence under section 138 of
the NI Act.
13. Now, if we conjointly read the provisions of section 138(1) and section 141 of the
NI Act, the legal propositions that emerge are that although a payee may present the
cheque as many times as s/he wishes within the six months of the issuance of the
cheque or within six months of its validity, whichever becomes earlier, however, the
payee is competent to make only one written demand, which may be either in person or
by registered post or through daily Bangla national newspaper, for payment within
thirty days of receiving information about the dishonouring of the cheque for the last
time. Thereafter, once the date of receipt of the said written notice, which was
communicated using any one form out of the above three means, is known and, then,
the drawer does/could not pay the money within thirty days of the receipt of the
demand notice, then cause of action for filing a criminal case under section 138(1) of
the NI Act arises and, thereafter, the payee is required to file the case within one month
from the date of accrual of the cause of action.

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14. In other words, from a concurrent reading of sections 138 & 141 of the NI Act, all
that we get is that although main part of section 138(1) of the NI Act makes
dishonouring of a cheque an offence, but its Proviso puts restriction on its application
upon attaching three conditions and when the stipulated three conditions, are satisfied,
only then the Magistrate is competent to take cognizance of the offence under section
138(1) of the NI Act subject to fulfilling a further condition that the payee-complainant
approaches the Magistrate within one month from the date of arising of the cause of
action. In total, thus, the payee is required to satisfy the Court four conditions at the
time of taking cognizance. While failure to comply with any one of the three conditions
set out in clauses (a) to (c) of the Proviso to section 138(1) of the NI Act shall result in
non-commission of the offence inscribed in the main part of section 138(1) of the NI
Act, noncompliance of the condition stipulated in section 141(b) of the NI Act shall
make the Magistrate incompetent to take cognizance of the offence. To say the least,
failure by the payee-complainant to comply with a single condition, out of the above
four conditions stipulated in clauses (a) to (c) of the Proviso to section 138(1) and
section 141(b) of the NI Act, shall incapacitate the payee-complainant to file/continue
with a case under section 138 of the NI Act.
15. Applying the ratio laid down hereinabove, let us now adjudicate upon the issue No.
2, namely, whether the proceedings in question require to be quashed on the ground
that the complaint petition discloses no offence under section 138 of the NI Act.
16. From the perusal and scrutiny of the complaint-petition, application under section
265C of the CrPC and order-sheets, it transpires that the complainant placed the cheque
within six months of its issuance i.e. since the cheque was issued on 1-1-2015 and the
same was presented for encashment on 20-4-2015, we find that the requirement of
clause (a) of Proviso to section 138(1) of the NI Act has been satisfied. Now comes the
question of satisfaction on clause (b) of Proviso to section 138(1) of the NI Act. It is not
specifically mentioned in the complaint-petition as to when the payee-complainant came
to know about the factum of dishonouring of the cheque. In the absence of any
statement by the complainant or production of any document before this Court as to
receiving the information regarding the dishonouring of the cheque by the bank on a
later date, it is to be taken that, in this digital era, the payee was informed by the bank
about dishonouring of the cheque within a few minutes of the same day i.e. on 20-4-
2015 and the payee-complainant was required, as per the clause (b) of the Proviso to
section 138(1) of the NI Act, to make a written demand, in any of the three methods,
namely, by handing over in person or by delivering by registered post or through
publication in the national Bangla newspaper, within thirty days from 20-4-2015 i.e. 19-
5-2015 was the last date for making written demand. The payee-complainant, in this
case, made demand by sending a registered notice on 26-4-2015. So, the payee made
written demand within time as stipulated in clause (b) of the Proviso to section 138 of
the NI Act. Now, comes the question of receiving the notice by the accused. As per the
statement made in the petition of complaint by the payee-complainant, the notice was
sent back by the accused to the payee-complainant on 6-5-2015 and, therefore, it is to
be presumed that the accused received information about the notice on 6-5-2015. Since
the petition of complaint mentions about sending the letter by registered post, the legal
presumption, as per the provisions of section 27 of the General Clauses Act, 1897, is
that the accused has received the demand notice and, thus, the thirty days time for
making payment by the accused expired on 5-6-2015. As per section 141(b) of the NI
Act, the cause of action for filing a complaint petition under section 138 of the NI Act
arose on 5-6-2015 and, accordingly, the payee-complainant was required to file case
within one month from 5-6-2015. It follows that the last date for filing the petition of
complaint was 5-7-2015, but in the present case, the payee-complainant filed the

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petition of complaint on 16-7-2015.
17. It is the case of the payee-complainant that since he, for the second time, made a
written demand for payment of his loan-money on 22-5-2015 by publishing a notice in
a daily national Bangla newspaper, namely, Daily Ittafaq, being driven by an
understanding that the legal notice having been sent back by the accused without any
acknowledgment thereto, it should be published in the newspaper, cause of action arose
on 21-6-2015 i.e. after expiry of thirty days from 22-5-2015 and, accordingly, the last
date for filing the case was 21-7-2015 and the present case having been filed on 16-7-
2015 is very much within time.
18. Now, let us see whether the above manner of calculations of the different dates is
permissible in law. Firstly, the petition of complaint does not contain the date of
receiving information by the payee as dishonouring the cheque and, thus, it is to be
taken that the payee was informed by the bank about the dishonouring of the cheque on
the very date of dishonouring the cheque i.e. on 20-4-2015, unless the payee wants to
prove it to the contrary by producing any document, such as any letter from the bank or
e-Mail/SMS from the bank notifying about the dishonouring of the cheque on a later
date. The payee-complainant, in this case, has not produced before this Court any such
document to satisfy us that the date of receiving information as to the dishonouring of
the cheque may be proved by adducing evidence before the trial Court. So, evidently
the date of receiving information about dishonouring the cheque being 20-4-2015 and
the payee-complainant being required to make written demand within thirty days of the
receiving information regarding dishonouring of the cheque, as per clause (b) of the
Proviso to section 138(1) of the NI Act, the last date for making written demand by the
payee-complainant was 19-5-2015. But the complainant's own version is that the
newspaper notice was published on 22-5-2015. Now, even if it is conceded to be the
actual notice under Proviso (b) to section 138(1) of the NI Act, the complainant
evidently has published the notice in the newspaper beyond limitation period i.e. after 3
(three) days of the last date for making written demand. From this line of calculation of
time as well, failure by the payee-complainant to meet the condition stipulated in clause
(b) of the Proviso to section 138(1) of the NI Act results in non-commission of an
offence by the accused under section 138 of the NI Act.
19. From the above analysis of the different dates, it appears to us that in a bid to
cover up the time-limitation prescribed in clauses (a), (b) & (c) of the Proviso to section
138(1) of the NI Act, the payee-complainant made the demand for the second time
through publication of the notice in the Daily Ittafaq. But, as per the ratio laid down in
this case hereinbefore by us, no payee is allowed to make written demand for the
second time. In this connection we like, to refer to the decision in the case of SM Anwar
Hossain v. Md Shafiul Alam reported in 51 DLR (AD) 218 wherein their Lordships held:
"Subsequent allegation will not save limitation because 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 under clause
(c) of the Proviso to section 138 of the Act."
20. Therefore, initiation of the impugned proceedings on the basis of the second notice
being not legal, taking cognizance of the complaint by the Magistrate is also not legal
and, thus, we hold that: the continuation of the proceedings is an abuse of the process
of the Court.
21. The above threadbare discussions on the facts of this case and minute examination

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on the provisions of section 138 & 141 of the NI Act lead us to hold that the payee-
complainant in his petition of complaint by not disclosing the date of receiving
information as to the dishonouring of the cheque by the bank, secondly, by making
written demand for the second time and thirdly having filed complaint petition after the
expiry of statutory period of limitation of one month, failed to disclose an offence under
section 138 of the NI Act and, therefore, we are of the view that for preventing the
abuse of the process of the Court, the proceedings in question, namely, Sessions Case
No. 714 of 2015 arising out of CR Case No. 209 of 2015, under section 138 of the NI
Act, is liable to be quashed.
22. In the result, the Rule is made absolute and the proceedings of Sessions Case No.
714 of 2015 arising out of Bhanga CR case No. 209 of 2015 under section 138 of the NI
Act pending in the Court of learned Additional Sessions Judge, Faridpur are hereby
quashed.
2 3 . However, the payee-complainant shall be at liberty to file a money suit in a
competent Court of law for recovery of his money, if he is so advised. Alongside filing
the money suit, this Judgment and Order shall not debar the complainant to file criminal
case in the proper forum, if he is advised that a prima-facie offence of cheating has
been committed.
24. Before parting with this Judgment, it appears to us to be pertinent to note here that
because of improperly handling the cases under section 138 of the NI Act by the
concerned Magistrates at the stage of taking cognizance and, thereafter, due to not
applying the minds judicially by the learned Judges entrusted with the tasks of trying
the cases under section 138 of the NI Act, a huge number of accused persons are
approaching this Court with quashment applications on the ground of non-compliance
of the provisions of sections 138 & 141 of the NI Act. When the Judiciary of
Bangladesh, which consists of the Supreme Court of Bangladesh and its subordinate
Courts, striving to cope with the massive backlog of cases, it is expected that all the
learned Judges and Magistrates would put in their best efforts to be perfect in passing
Orders and Judgments so that the litigants do not get any ground/plea to challenge the
same in the High Court Division. Keeping the above aspect in view, as part of this
Court's duty of monitoring and superintending the functions of the learned Judges and
Magistrates of the subordinate Courts, we consider it to be appropriate to lay down
some guidelines for the learned Magistrates empowered to take cognizance of the
offence under section 138 of the NI Act and the learned Judges assigned to conduct the
trial of the above cases, in an endeavour to save invaluable time of the Judiciary.
25. Guidelines for the learned Magistrates who are empowered to take cognizance of
the offence under section 138 of the NI Act:
1 . The learned Magistrates shall not entertain any petition of complaint under
section 138 of the NI Act unless the same contains the following statements:
(a) Date of issuance of the cheque in question,
(b) Date of dishonour of the said cheque for the last occasion i.e. the
latest date of dishonour,
(c) Date of receiving information as to the dishonouring of the cheque
by the payee from the bank,
(d) Date of making written demand (by delivering it in person/by

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 registered post/by publication in the Bangla national newspaper) by the
payee to the issuer/drawer of the cheque,
(e) Date of receipt of the demand notice by the issuer/drawer of the
cheque.
2 . After going through the complaint petition, if the learned Magistrate finds
that a single statement of the above statements is missing, s/he shall decline to
examine the complainant under section 200 of the CrPC.
3 . When the learned Magistrate would be satisfied that the above steps were
perfectly taken by the payee as per the provisions of clauses (a) to (c) of the
Proviso to section 138 of the NI Act, then, the learned Magistrate shall check as
to whether the payee has approached the Court within one month from the date
of receipt of the written demand notice.
4. If the learned Magistrate finds that the payee has approached the Court upon
complying with the above provisions of law, only then s/he is competent to
exercise his/her power of taking cognizance.
5 . The learned Magistrates shall bear in mind that if, at this stage, the
complainant simply makes statements in respect of the above steps in addition
to producing the original cheque in question, it will be sufficient for the
complainant to initiate his/her case, for, it shall rest upon the complainant to
prove his/her above statements by adducing oral/documentary evidence at the
trial.
2 6 . Guidelines for the learned Sessions Judges/Additional Sessions Judges/Joint
Sessions Judges who are conducting the trial of the cases under section 138 of the NI
Act:
(1) When an application for discharge under section 265C of the CrPC is filed
by the accused only on the ground of noncompliance of the provisions of the
clauses (a) to (c) of the Proviso to section 138 and section 141 (b) of the NI
Act, the trial Court must not hesitate to discharge the accused if it appears to
the Court that neither the petition of complaint contains nor the statements
made by the complainant at the time of examination under section 200 of the
CrPC disclose the information enunciated hereinbefore under the caption
"Guidelines for the learned Magistrates"
(2) If the above information is provided in writing in an application under
section 265C of the CrPC by the accused, the trial Court should not regard it as
defence version, for, in bringing the noncompliance to the above provisions of
section 138 and 141 of the NI Act, the complainant is simply seeking to draw
the attention of the Court that the petition of complaint does not or the
statements made under section 200 of the CrPC do not disclose any offence. At
this stage, the trial Court shall not emphasize on the document/s in
corroboration of the statements made by the complainant as to the various
dates, because the complainant shall have the opportunity to prove his/her
statements either by oral evidence or by documentary evidence at the time of
making his/her deposition as a witness.
(3) No accused shall be discharged on the basis of the defence version i.e. any
information provided or documents produced by the accused at this stage in an

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 application under section 265C of the CrPC. However, if the defence version
taken by the accused in the discharge application appears to the Court to be
prima facie plausible, the Court should endeavour to complete the trial of the
case within the shortest possible time to minimize the harassments.
The Register General of the Supreme Court of Bangladesh is directed to disseminate a
copy of this Judgment and Order to all the learned Sessions Judges, CMMs and CJMs of
Bangladesh, either sending by registered post or by placing it in the Website of the
Bangladesh Supreme Court.
Office is directed to communicate this order to the Register General of Bangladesh and
the Court of the learned Additional Sessions Judge, Faridpur, forthwith.
© Manupatra Information Solutions Pvt. Ltd.

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