Your
Advocate
Q.
Dear Sir, I have been reading with great interest the Readers queries
in your Law & Our Rights Page. My question to you is as follows:
1. I came to know
from many Banks that if any cheque is dishonored it is criminal offence
under Negotiable Instrumental Act 138 punishable with RI Imprisonment
& penalty three times of the cheque amount. I find that by this
act medium class people issuing such cheques are taken to custody on
orders of the court, but the influential people issuing bigger amount
on cheques, are not taken into custody & get bail. I also find that
the court send such matter for inquiry to the police station and for
FIR. The police keep the matter pending for months together without
doing anything. Is the law bailable or non-bailable. How long can the
police keep the case with them without submitting the report to the
court?
2. I would like
to know what is the use of the law if it is not being implemented. The
Influential people issue cheques knowing well that they have no money
in the account and also knowing that the law will not be able to touch
them. Please suggest me what is the remedial to the above, and why such
law is introduced if it cannot be implemented.
Thanking you in advance for your advice.
Yours
faithfully, A.R. Merchant. Dhaka.
Your
Advocate: I have read through your query very attentively.
Your grievances that transpired seem to be more against non-application
and misapplication of law and alleged undercurrent of rich-poor discrimination
in the exercise of law than against law itself. These are things, which
are, no doubt, amenable to law. But unfortunately law cannot take its
own course, as it is commonly believed to be, without the persons and
agencies entrusted to carry it into effect. If there is any inherent
infirmities in the system itself the subject exceeds the narrow confines
of the area of a professional lawyer and turns out as one to be addressed
through interdisciplinary inquiry. I, as a lawyer, can at best offer
my thanks for your guards to say what you mean to say but cannot find
out a redress for your grievances.
In the general
run of frustrations expressed in your query only two sentences have
touched upon law points that admit of comments from a lawyer. The sentences
relate to the question of bail and to the length of time police may
take in submitting inquiry-report. I am trying to address the same.
Section 138 of
the Negotiable Instrument Act is a penal clause providing for imprisonment
but nowhere in the Act anything is said about bail. That is, the law
is silent as to whether the offence is bailable or non-bailable. Therefore,
it can neither be called bailable or non-bailable. But where under any
special law offences punishable with imprisonment's are created without
saying anything about their position in terms of bail court can grant
bail in exercise of its power conferred by the Code of Criminal Procedure.
As for police,
there is time frame provided by the Code of Criminal Procedure for submitting
report of investigation. But this is merely directory. No consequence
follows if police fails to submit report within the time specified by
law except that the failure in submitting the report furnishes a good
ground for bail of the accused, if in custody. In your case, that is,
in a case under Section 138 of the Negotiable Instrument Act I do not
find any reason of inquiry to be made by any police officer or any other
person. Because the nature of the case does not call for such inquiry.
In such cases court of magistrate is competent to take cognizance directly
and enter upon trial.
Coming back to
your basic grievances, I feel like adding that inspite of all, you can
consult a good lawyer on your particular issue. The records of your
case, if any, will speak for themselves and give the lawyer the true
scenario of your sufferings. Who knows, there may still be elements
suggesting means for the redress of your grievances, which may otherwise
look impossible or misleading from outside.
Your
Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Corresponding
with the Law Desk
Please send your mails, queries, and opinions to: Law Desk, The
Daily Star 19 Karwan Bazar, Dhaka-1215; telephone 8124944,8124955,fax
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