IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)
CRIMINAL MISCELLANEOUS CASE NO.

OF 2016

IN THE MATTER OF:

An application under Section 561A of the
Code of Criminal Procedure.
AND
IN THE MATTER OF:
Engr. Shudhangshu Chandra Biswas, Son
of Late Dinesh Chandra Biswas
Managing

Director,

Designers

&

Developers Builders Ltd. and S.S. Mart

Ltd. Of 11/Ga Shamoly, Road No. 2,
Shamoly, Dhaka1207
At present, Green Homes House 10/7 4th
floor,Road No.9, Block-A, Iqbal Road,
Mohammadpur,

Dhaka-1207.

Office

Address- 14/B (2nd & 3rd floor), Road No.

95, Gulshan-2, Dhaka-1212.

For the petitioner.

Through

Advocate

(in jail)

---Convict-Petitioner.

Engr. Shudhangshu Chandra Biswas

DISTRICT: DHAKA

-------Convict- Petitioner.
(in jail)
-VERSUS1.

The State, represented by the Deputy

Commissioner, Dhaka.
----------Opposite-Party

2.

Major (retd.) Dr. Toslima Ferdous,

wife of Group Captain (retd.) Md.
Alamgir of Flat No. 3/A, House No.
72, Road No.5, D.O.H.S. Bananny,
District-Dhaka.
Represented

by

her

constituted

Attorney Colonel Md. Moinul Haque

(retd.), Managing Director, Barbi
Agro Ltd. of House No. 199, Road
No. 1, New D.O.H.S, Mohakhali,
District- Dhaka.
.Complainant-Opposite party

-ANDIN THE MATTER OF:

For quashing the Judgment and order

of Conviction and Sentence dated
16.11.2015 passed by the learned
Special Sessions Judge, Special Court
No. 5, Dhaka in Special Sessions
Case No.193 of 2015 Corresponding
to Metropolitan Sessions Case No.
8544 of 2015 arising out of C.R. Case
No. 412 of 2015 Convicting the
Petitioner under section 138 of the
Negotiable Instrument Act, 1881 and
thereby sentencing him to suffer
simple imprisonment for 1(one) year
and

also

to

pay

fine

of

Tk-

2,25,00,000/- (two crore twenty five

lac only).

-ANDIN THE MATTER OF:

For quashing the proceedings of

Special Sessions Case No.193 of 2015
corresponding

to

Metropolitan

Sessions Case No. 8544 of 2015

arising out of C.R. Case No. 412 of
2015 under section 138 of the
Negotiable Instrument Act, 1881,
disposed of by the learned Special
Sessions Judge, Special Court No. 5,
Dhaka.

To
Mr. Justice Surendra Kumar Sinha, the Honble Chief Justice of
Bangladesh and his companion Justices of the said Honble Court.

The humble petition on behalf of the

petitioner
respectfully:-

S H E W E T H:

named

above

most

1.

That the opposite party No. 2 being complainant through her

attorney filed a C.R. Case being No. 412 of 2015 before the
Court of learned Chief Metropolitan Magistrate, Dhaka against
the petitioner alleging inter alia that the petitioner is a building
developer; that the complainant with intend to purchase a flat
from the petitioner paid Tk- 2,25,00,000/-; but subsequently the
complainant changed her mind and asked her money back from
the petitioner; accordingly the petitioner gave her 2 cheques of
taka fifty lac each which were dishonored by the bank for
insufficiency of fund; subsequently the petitioner took back the
said cheques and signed a memorandum of understanding with
the complainant on 16.11.2014; that thereafter the petitioner
gave 3 cheques to the complainant being No. 2931740 dated
30.11.2014 amounting to TK- 25,00,000/- (twenty five lac),
cheque No. 2931738 dated 10.01.2015 amounting to Tk.
1,00,00,000/- (one crore) and cheque No. 2931742 dated
30.01.2015 amounting to Tk.

1,00,00,000/- (one crore)

in

favour of the complainant; accordingly the complaint deposited

the said cheques to the bank for realization of the cheque
amount. The relevant branch of the bank dishonoured the said

cheque on the ground of insufficient fund on 10.02.2015.

Subsequently the complainant sent a legal notice to the
petitioner by her appointed lawyer on 02.03.2015 to deposit the
amount. But although 30 days time expired, he did not refund
the said money to the complainant and hence the case.
Certified copy of the said C.R. Case No. 412
of 2015, Power of attorney and the
Memorandum of understanding are annexed
hereto and marked as Annexure A, A-1 &
A-2
2.

That the said case was filed on 13.04.2015 in the Court of

learned Chief Metropolitan Magistrate, Dhaka and after
examining the attorney of the complainant under section 200 of
the Code of Criminal Procedure, the learned Metropolitan
Magistrate, Dhaka took cognizance against the petitioner under
section 138 of the Negotiable Instruments Act, 1881. Thereafter
the petitioner surrendered before the court of learned
Metropolitan Magistrate and obtained bail on 30.06.2015.

Certified copy of the said deposition and the

relevant order sheet are annexed hereto and
marked as Annexure B & B-1.

3.

That subsequently the case record was transmitted to the Court

of learned Metropolitan Sessions Judge, Dhaka where on
receipt of the same, the case has been registered as
Metropolitan Sessions Case No.8544 of 2015. Thereafter the
case was transferred to the learned Special Sessions Judge,
Special Court No. 5, Dhaka for holding trial and was again
renumbered as Special Sessions Case No.193 of 2015.

4.

That after transferring the case for trial the petitioner again
surrendered before the learned Trial Court and again obtained
bail. The petitioner filed an application for discharging under
section 265(C) of the code of criminal procedure and the
learned Trial Court without considering the said application on
20.09.2015 framed charge against the accused petitioner under
section 138 of the Negotiable Instruments Act, 1881 and fixed
the next date on 02.11.2015 for trial.

Certified copy of the said application is

annexed hereto and marked as Annexure
C.

5.

That on the next date of trial i.e. on 02.11.2015 further date

was fixed for deposition of witness and the attorney of the
complainant gave deposition. But the learned lawyer of the
petitioner mistakenly had informed the petitioner that the next
date was 20.11.2015 in place of 02.11.2015 and after 3 days the
next date was fixed on 05.11.2015 for argument, therefore, the
petitioner as well as his learned lawyer could not appear before
the trial court and the court heard the argument of the
complainant in absence of the petitioner as well as his learned
lawyer (Annexure- B-1) and

9.11.2015 was fixed for

Judgment. But on that date the trial court was busy on other
matters and fixed 16.11.2015 for judgment and order.

6. That on 16.11.2015 after conclusion of trial the learned trial court

convicted the petitioner under section 138 of the Negotiable
Instruments Act, 1881 and thereby sentenced him to suffer

simple imprisonment for 1(one) year and also to pay a fine of

Tk- 2,25,00,000/- (two crore twenty five lac only).
Copy of the judgment and order
dated 16.11.2015 are annexed
hereto

and

marked

as

Annexure-D and D-1

7.

That subsequently the petitioner was arrested by the police and

was produced before the court of learned magistrate and the
learned magistrate sent him to the jail custody. Subsequently the
learned trial court vide order dated 06.03.216 issued conviction
warrant.
Certified copy of the said order dated
06.03.2016 is annexed hereto and marked as
Annexure E.

8.

That it is stated that the accused petitioner is innocent and did

not issue the alleged cheques. That the complainant and the
accused petitioner had old business transaction and the
petitioner on good faith deposited three blank cheques to the
complainant for the purpose of business and the cunning

10

complainant taking advantage of blank cheques by forgery filed

this false and concocted case against the accused petitioner and
even the complainant did not serve the notice upon the
petitioner before filing the case.

9.

That it is respectfully submitted that according to section 141

(a) of the Negotiable Instruments Act no court shall take
cognizance of any offence punishable under section 138 of this
Act, except, upon a complaint in writing made by the payee or
the holder in due course and in the instant case the complainant
is a power of attorney i.e. neither he is a payee nor a holder in
due course; as such, taking cognizance of the instant case on the
complaint made by a person who is neither a payee nor a holder
in due course is nothing but an abuse of the process of court and
therefore liable to be quashed for the ends of justice.

10.

That it is respectfully submitted that the petitioner missed a date

of case only for the unintentional mistake of the learned lawyer
but the learned trial court without giving him any opportunity to
appear and to defend himself and without following proper
proceeding of trial in absentia completed the whole proceeding

11

of the case only within two weeks by abusing the process of

court which indicates malafide intention and undue influence of
the complainant, and therefore, the impugned judgment and
order of conviction as well as the instant proceeding against the
petitioner is liable to be quashed for the ends of justice.

11.

That it is respectfully submitted that the learned trial court

passed the impugned judgment and order of conviction without
taking the deposition of the Complainant herself; the
Negotiable Instruments Act is a special law, as such
pronouncing judgment only on the basis of deposition of a
power of attorney is not tenable in the eye of law and therefore
the impugned judgment and order of conviction as well as the
instant proceeding against the petitioner is liable to be quashed
for the ends of justice.

12.That it is respectfully submitted that the cheque was

furnished as security and according to the decision of
the Apex Court, mere dishonor of cheque does not
constitute any offence and on the basis of bouncing

12

security cheque the petitioner cannot be held guilty; as

such the alleged allegation cannot constitute an offence
punishable under section 138 of the Negotiable
Instrument Act, 1881 and therefore the impugned
judgment and order of conviction as well as the
proceeding against the petitioner is liable to be quashed
for the ends of justice.
13. That it is submitted that according to section 141 (a) of
the Negotiable Instrument Act no court shall take
cognizance of any offence punishable under section
138 of this Act in the instant case filed on the basis of
power of attorney without mentioning any cheque
number, hence, the proceeding, conviction and sentence
is illegal and in the instant case the complainant is a
power of attorney made without cheque number as such
taking cognizance is an abuse of the process of court
and therefore is liable to be quashed for the ends of
justice.
14. That it is respectfully submitted that the
very initiation of the instant case is defective

13

as because the cognizance taken in the instant

case was violative of section 141 (a) of the
act and therefore the judgment and order of
conviction cannot sustain in law, of which
initiation is itself defective and violative of
law, and therefore the impugned judgment
and order of conviction as well as the
proceeding against the petitioner is liable to
be quashed for the ends of justice.
15. That it is further submitted that the Complainant-Opposite
Party No. 2 at the time of filing of Complaint Case did not follow
the Negotiable Instruments Act, 1881 (Till amended). The 3
Cheque bearing

No. 2931740 dated 30.11.2014 for Tk.

25,00,000/-, Cheque No. 2931738 dated 10.01.2015 for Tk.

1,00,00,000/- and Cheque No. 2931742 dated 30.01.2015 for Tk.
1,00,00,000/- totaling Tk. 2,25,00,000/-(two crore twenty five
lac) only from his account No. 0005133000052 of Standard Bank
Ltd. Green Road Branch, Dhaka were dishonored on 10.02.2015,
legal notice was served on 02.03.2015, legal notice was received
by one Mr. Shamsul under his signature without putting date on

14

acknowledgement due (A/D) slip. Since receipt of the notice is

not established

and no cause of action following thereof, is

disclosed in the complaint as per section 141(b) of the Negotiable

Instruments Act, 1881, there is no disclosure of the offence and
as such, the proceeding being abuse of the process of the court be
quashed under section 561A of the Code of Criminal Procedure
following the decision in Nazim Uddin vs. Abdul Hamid Bhuyan
and another, MLR(AD)2004 page 299.

16.

That being aggrieved by and dissatisfied with the impugned

proceeding, Judgment and Order dated 16.11.2015 the
petitioner begs to move this petition before your Lordships on
the following amongst other: -

GROUNDS
I.

For that according to section 141 (a) of the Negotiable

Instrument Act no court shall take cognizance of any offence

15

punishable under section 138 of this Act except upon a complaint

in writing made by the payee or the holder in due course and in
the instant case the complainant is a power of attorney i.e. neither
he is a payee nor a holder in due course; as such taking
cognizance of the instant case on the complaint made by a person
who is neither a payee nor a holder in due course is nothing but
an abuse of the process of court and therefore liable to be
quashed for the ends of justice.
II.

For that according to section 141 (a) of the

Negotiable Instrument Act, no court shall take
cognizance of an offence punishable under section
138 of this Act, except upon a complaint made by
the payee or the holder in due course of the cheque.
The instant C.R. case being No. 412 of 2015 was
filed on the basis of power of attorney, awarded by
Major (Retd.) Dr. Taslima Ferdous to Col.(Rtd)
Mainul Hoque, made without mentioning said
cheque numbers, date and name of Bank therein. As
such,

on the basis of said unspecific power of

attorney

taking

cognizance,

framing

charge,

16

proceeding, awarding conviction and sentence by

the trial court against the petitioner are abuse of the
process of court, and the same is not sustainable
according to Provision of section 141 (a) of the
Negotiable Instruments Act, and therefore, is liable
to be quashed to secure ends of Justice.

III.

For that the petitioner missed a date of case only for

the unintentional mistake of the learned lawyer but
the learned trial court without giving him any
opportunity to appear and to defend himself and
without following proper proceeding of trial in
absentia completed the whole proceeding of the case
only within two weeks by abusing the process of
court which indicates malafide intention and undue
influence of the complainant and therefore the
impugned judgment and order of conviction as well
as the instant proceeding against the petitioner is
liable to be quashed for the ends of justice.

17

IV.

For that the learned trial court passed the impugned

judgment and order of conviction without taking the
deposition

of

the

Complainant

herself;

the

Negotiable Instruments Act is a special law, as such

pronouncing judgment only on the basis of
deposition of a power of attorney is not tenable in
the eye of law and therefore the impugned judgment
and order of conviction as well as the instant
proceeding against the petitioner is liable to be
quashed for the ends of justice.

V.

For that cheque was furnished as security

and

according to the decision of the Apex Court, mere

dishonor of cheque does not constitute any offence
and on the basis of bouncing security cheque the
petitioner cannot be held guilty; as such the alleged
allegation cannot constitute an offence punishable
under section 138 of the Negotiable Instruments Act,
1881 and therefore the impugned judgment and
order of conviction as well as the proceeding against

18

the petitioner is liable to be quashed for the ends of

justice.

VI.

For that the very initiation of the instant case is

defective as because the cognizance taken in the
instant case was violative of section 141 (a) of the
act and therefore the judgment and order of
conviction cannot be sustained in law which
initiation is itself defective and violative of law and
therefore the impugned judgment and order of
conviction as well as the proceeding against the
petitioner is liable to be quashed for the ends of
justice.
VII.

For that the Complainant-Opposite Party

No. 2 at the time of filing of Complaint Case did not

follow the Negotiable Instruments Act, 1881 (Till
amended). The 3 Cheque bearing

No. 2931740

dated 30.11.2014 for Tk. 25,00,000/-, Cheque No.

2931738 dated 10.01.2015 for Tk. 1,00,00,000/- and
Cheque No. 2931742 dated 30.01.2015 for Tk.

19

1,00,00,000/- totaling Tk. 2,25,00,000/-(two crore

twenty five lac) only from his account No.
0005133000052 of Standard Bank Ltd. Green Road
Branch, Dhaka were dishonoured on 10.02.2015,
legal notice was served on 02.03.2015 which was
received by one Mr. Shamsul under his signature
without putting date on acknowledgement due (A/D)
slip. Since receipt of the notice is not established
and no cause of action following thereof is disclosed
in the complaint as per section 141(b) of the
Negotiable Instruments Act, 1881, there is no
disclosure of the offence and such, the proceeding
being abuse of the process of the court be quashed
under section 561A of the Code of Criminal
Procedure following the decision in Nazim Uddin
vs.

Abdul

Hamid

Bhuyan

and

another,

MLR(AD)2004 page 299.

Wherefore, it is most humbly prayed

that your Lordships would graciously be

20

that your lordships may graciously be

pleased to call for the record, issue Rule
calling upon the Opposite Parties to
show cause as to why the Judgment and
order of Conviction and Sentence dated
16.11.2015 passed by, the learned
Special Sessions Judge, Special Court
No. 5, Dhaka in Special Sessions Case
No.193 of 2015 Corresponding to
Metropolitan Sessions Case No. 8544 of
2015, arising out of C.R. Case No. 412
of 2015

and sentenced him to suffer

simple imprisonment for 1(one) year

and also to pay fine of Tk- 2,25,00,000/(two crore twenty five lac only) should
not be quashed and after hearing the
parties, perusing the record and cause
shown, if any, make the Rule absolute
and and/or pass such other Order or

21

further Order or Orders as to your

Lordships may deem fit and proper.

-ANDPending hearing of the Rule your

Lordships may further be pleased to
enlarge the petitioner on ad-interim bail
and stay realization of fine.

And for this act of kindness the humble petitioner as in duty bound
shall ever pray.

AFFIDAVIT

I, Md.Mostafa Kamal Pasa son of late Abul Kalam and Tafura Khatun
of 88, Arambagh, Rajia Manjil, Post Office- Arambagh, Police
Station- Motijheel, Dhaka, by faith-Muslim, by Profession- business
aged about-31years, Nationality-Bangladeshi, National ID No.
19857514770989792 do hereby solemnly affirm and say as follows:-

22

1.

That I am the accused petitioner and tadbirker of this case and

am conversant with the facts and circumstances of the case and
competent to swear this affidavit.

2.

That all the certified copies annexed with the application are
genuine and true.

3.

That the statements made in paragraphs are true to my

knowledge and belief and the rests are

submission of the

learned Advocate.
Prepared in my office

(Md. Sirajul Alam Bhuiyan)

Advocate
Solemnly affirmed before me
at Supreme Court premises this
day of March, 2015.

Deponent
The Deponent is known to me and
identified by me.

______________________
(Md. Sirajul Alam Bhuiyan)
Advocate
Supreme Court Bar Association
Membership No. 5509
Room No. 216 (Annex Bhaban),
Supreme Court Bar Association,
Dhaka.
Phone No01817622242

23

COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION, DHAKA.

NOTICE

DISTRICT: DHAKA
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
CRIMINAL MISCELLANEOUS CASE NO.

OF 2016
....

VERSUS
The State and another.
... Opposite Parties
To
Attorney General
Govt. of Bangladesh.
Dear Sir,
Please take notice that an application under section 561A of the Code

24

of Criminal Procedure (a copy of which is enclosed herewith) will be

moved before this Hon'ble court.
Yours faithfully
()
Advocate
For the petitioner.