knowledge of rejection is an offence
(Criminal Revisional Jurisdiction)
Criminal Mis. Case No 9772 of 2003
Md Aminur Rahman
The State and another
Justice Gour Gopal Saha and
Justice Abdus Salam Mamun
Date of Judgement: June 15, 2003
Gour Gopal Saha, J: This application under section
561A of the Code of Criminal Procedure is directed against the order
dated 20-4-2003 passed by the Sessions Judge, Tangail in Criminal Revision
No. 60 of 2003 rejecting the revisional application filed against the
framing of a charge against the accused petitioner under section 420
of the Penal Code.
Short facts relevant
for the purpose of the case are that on 18-12-2000 opposite party No.
2 as complainant filed a petition of Complaint in the Court of the Magistrate,
Tangail alleging inter alia that the accused-petitioner took Tk 2,00000/=
(Two lac) from him on promise to pay back the same on demand with usual
interests but he did not pay back any money to the complainant inspite
of repeated demands.
on being pressed by the complainant, the accused gave him on 20-6-2000
a cheque on the Janata Bank, Tangail Branch for Tk 20,000/= only towards
mitigating the liability. The cheque was duly deposited in the account
of the complainant but it was dishonoured on 20-6-2000 due to paucity
of fund. Subsequently the complainant deposited the said cheque for
encashment on 25-7-2000 and 27-10-2000, but as usual the cheque was
dishonoured. Thereafter the complainant requested the accused to pay
his dues but the accused refused to comply with its and eventually denied
the transaction and thereby cheated the complainant.
the complainant on solemn affirmation as required under section 200
of the Code of Criminal Procedure, the learned Magistrate took cognizance
of the case and ultimately framed charge against the accused-petitioner
under section 138 of the Negotiable Instruments Act.
by the framing of charge as mentioned above, the accused petitioner
preferred Criminal Revision No 44 of 2002 before the Sessions Judge,
Tangail under sections 439A of the Code of Criminal Procedure. The learned
sessions Judge by his order dated 25-4-2002 allowed the revision and
sent the case back to the learned Magistrate for hearing on framing
On receiving the
aforesaid order of the learned Sessions Judge, the learned Magistrate
heard the parties at length and, on perusal of the materials before
him, framed charge against the petitioner under section 420 of the Penal
Against the aforesaid
order of framing charge by the learned Magistrate, the accused-petitioner
preferred Criminal Motion No 60 of 2003 before the Sessions Judge, Tangail
under section 439A of the Code of Criminal Procedure. The learned Sessions
Judge by his impugned order dated 20.4.2003 summarily rejected the petitioner's
revisional application. It is against the aforesaid order 20.4.2003
that the petitioner has preferred this application before us under section
561A of the Code of Criminal Procedure.
The learned advocate appearing for the accused-petitioner, submits that
in view of provisions of section 138 of the Negotiable Instruments Act,
the complainant was required to serve a notice upon the accused intimating
him of the dishonour of the cheque within 15 days of the such dishonour,
and that having not been done no criminal prosecution can be launched
against the accused-petitioner. The learned Advocate further submits
that the charges under section 138 of the Negotiable Instruments Act
having failed, the framing of charge under section 420 of the Penal
Code on the self same occurrence is illegal and it amounts to an abuse
of the process of the Court and, consequently, the impugned order framing
charge is liable to be quashed in the interest of justice.
The learned Advocate
for the petitioner has placed before us the petition of complaint, the
orders passed by the learned Sessions Judge as well as the impugned
order passed by the learned Magistrate framing charge against the accused
petitioner under section 420 of the Penal Code.
Section 420 of the
Penal Code provides penalty for the offence of cheating as defined in
section 415 of the Penal Code while section 138 of the Negotiable Instruments
(Amendment) Act, 1994 provides punishment for issuance of a false cheque
leading to its dishonour. A person who is a victim of cheating by the
accused by way of a false cheque or otherwise is clearly entitled to
proceed against the accused either under the provisions of the Negotiable
Instruments Act or under the provision of section 420 of the Penal Code
when elements of cheating are established.
Issuing a cheque
knowing full well that it shall not be honoured carries with it distinct
elements of deceit on the part of the author of the cheque and it renders
him liable for prosecution for cheating. The victim of such a fraud
has two remedies open to him - one is to file a criminal case under
section 138 of the Negotiable Instruments Act and the other is to launch
a criminal prosecution under section 420 of the Penal Code. An offence
under section 138 of the Negotiable Instruments Act and an offence under
section 420 of the Penal Code are two distinct offences, one independent
of the other. The aggrieved party has thus the option to choose its
remedy under either of the two penal provisions and the defence has
no right to ask the complainant to elect a particular penal law that
may suit its convenience.
On perusal of the
materials placed before us, we are satisfied that there are sufficient
materials on record for framing charge against the accused-petitioner
under section 420 of the Penal Code. Facts disclosed in the case also
make out a case under section 138 of the Negotiable Instruments Act.
In such a case, it is all too open to the complainant to proceed under
any of the two penal laws available to him.
We are satisfied that the learned Magistrate duly applied his judicial
mind into the facts and circumstances of the case and the materials
on record and rightly framed charge against the accused-petitioner under
section 420 of the Penal Code. The impugned order, therefore, does not
suffer from any illegality or legal infirmity occasioning failure of
justice. We find no substance in the submissions made by the learned
Advocate for the petitioner. The application is rejected summarily.
Amjad Hossain for the petitioner.