Summary:

The Hon’ble High Court Division of the Supreme Court of Bangladesh has published circular no- 02-2021 dated 08-03-2021 determining the jurisdictional court for cases under article 138 of the Negotiable Instruments Act 1881. This concerns the landmark judgment in the last check case dated 18.10.2020. The judgment of the Hon’ble High Court ended the long-running discriminatory provisions in the trial, appeal and revision of check cases under section 138 of the Negotiable Instruments Act. At the same time, the cost and harassment of ordinary candidates will be reduced to a great extent. As per the directions of the judgment, the cases under Section 138 can be tried only by the Joint Sessions Judge. The Sessions Judge or the Additional Sessions Judge cannot adjudicate a check case. As a result, the judgment in the check case cannot be appealed to the High Court Division. Appeals can only be made to the Sessions Judge’s Court. As a result, the ongoing inequality among the candidates for justice will be eliminated.

Content:

In the matter of An application under Article 102 of the Constitution of the People’s Republic of Bangladesh, Barrister Mohammad Humayun Kabir Pallab, accompanied by Barrister Mohammad Kawsar, Barrister Majeedul Quader and Barrister Mozammel Haque, appeared for the petitioner A A M Ziaur Rahman in Writ Petition No. 13256/2018 with Writ Petition No. 14509/2018 with Writ Petition No.14510/2018 with Writ Petition No. 262/2019. Justice Sheikh Hassan Arif remarked that since the questions of law and facts involved in the aforesaid four writ petitions are almost the same, they have been taken up together for
hearing and disposed of by a common judgment.

Rules in the aforesaid writ petitions were issued in similar terms, namely-

1. calling upon the respondents, including the Ministry of Law, Justice and Parliamentary Affairs (respondent No.1 in Writ Petition No. 13256 of 2018) to show cause as to why the trial of the petitioners under Sections 138 and 141 (c) of the Negotiable Instruments Act, 1881 by the Joint Sessions Judges are creating different forums for appeals and criminal revisions in different districts for different accused to same alleged offenses should not be declared without lawful authority and is of no legal effect under Sections 408, 410, 439 and 439A of the Code of Criminal Procedure, and

2. as to why the proceedings in the said cases should not be declared without lawful authority and are of no legal effect.

Facts:

The Islami Bank Bangladesh Limited as Complainant, filed C.R Case No. 257 of 2017, C.R Case No. 251 of 2017 and C.R Case No. 325 of 2017 before the learned Judicial Magistrate Court, Cognizance Court, Gha Anchal, Chapainawabganj, and C.R Case No. 54 of 2018 (Akhaura) before the learned Judicial Magistrate Court, Akhaura, Brahmanbaria against the petitioners under Section 138 of the Negotiable Instrument Act, 1881 alleging that the petitioners issued Cheques, being Nos. IBV 7303505 dated 28.06.2017 for an amount of Tk. 33,82,500/-, IBF 9598497 dated 28.06.2017 for an amount of taka 17,69,000.00, IBV 7303510 dated 20.08.2017 for an amount of taka 10,24,088.00 (Taka Ten Lac Twenty Four Thousand Eighty-Eight), Nos. IBH-6640860 & IBH6640886 for an amount of taka 2,10,00,000/-(Taka two crore ten lac) and Tk. 6,50,000/-(Taka six lac fifty thousand) respectively in favour of the said complainant. However, while the said cheques were placed for encashment, the same was returned unpaid for “Insufficient Fund”. Thereafter, the complainant filed the said complaint.

Learned Magistrate Courts concerned took cognizance of the offences and issued summons. The petitioners then surrendered and obtained bail. The cases concerned were then transferred and accordingly renumbered to the learned Sessions Judge, Chapainawabganj and Sessions Judge, Brahmanbaria. The learned Sessions Judges took cognizance of the offences and granted bail in favour of the petitioners. The Sessions Judges then transferred the said cases to the Joint Sessions Judge, 1st Court, Chapainawabganj and Joint Sessions Judge, 1st Court, Special Tribunal No.4, Brahmanbaria for trial and, accordingly, trials of the said cases were commenced upon framing of charges against them under Section 138 of the Negotiable Instrument Act, 1881. The petitioners being aggrieved by such proceedings moved to the High Court and obtained the aforesaid Rules mainly on the ground that the Court of Joint Sessions Judges concerned being their trial courts, they are now bound to prefer any revision under Section 439 of the Code of Criminal Procedure Code and appeal under Sections 408 and 410 of the Code before the Sessions Judges of the Districts, which has deprived them of their expectation or legal right to prefer such revisional applications and/or appeals before a higher forum, namely the High Court Division of the Supreme Court of Bangladesh.

The respondent complainant contended that the anomaly surfaced regarding forum of appeal and revision may easily be cured by a common administrative approach by the Sessions Judges concerned in all districts in Bangladesh through the allocation of the cases under Section 138 of the NI Act for a trial to the Joint Sessions Judges. Therefore, merely on the ground of administrative anomaly and inconsistent approach of different Sessions Judges in different districts in the distribution of these type of cases, the proceedings should not be quashed or declared to be without lawful authority.

The Court found that in so far as the trials are concerned, there may not be any serious allegations of discrepancies in these cases, particularly when both the Joint Sessions Judge and the Additional Sessions Judge are competent enough to try a case under Section 138 of the NI Act, the maximum punishment of which is not above one-year imprisonment, as such judges normally conduct trials in respect of cases involving much higher quantum of imprisonments. However, when an accused in such case wants to prefer a revisional application and appeal against convictions under Sections 439 or 439A and Sections 408 and 410 of the Code respectively, the revisional applications from the order or appeals from a conviction of Joint Sessions Judges are preferable only to the Sessions Judges. On the other hand, revisional application against the order, or appeals against conviction of an Additional Sessions Judge or Sessions Judge is preferable directly to the High Court Division irrespective of the quantum of sentence to be imposed by such Additional Sessions Judge. According to the petitioners, since their cases have been picked by the concerned Sessions Judges for the purpose of trial to be conducted by the Joint Sessions Judges, they have been deprived of preferring a revisional application or appeal directly to the High Court Division under Sections 439 and 410 of the Code respectively, particularly when an accused on similar
footing with similar allegations like them who are being or have been tried by the Additional Sessions Judges because of the same pick and choose the policy of the learned Sessions Judges will be entitled to prefer revisional application and/or appeal directly to the High Court Division. This anomaly being created by the learned Sessions Judges concerned in the exercise of their power of distribution of business, has deprived these particular petitioners of their legitimate expectation as well as legal entitlement to prefer revisional application and appeal before the High Court Division directly, particularly when in such revisional applications and appeals they would get an opportunity to present their cases before a set of presumably more qualified and more experienced judges of the Supreme Court. This being so, there may be cases where the Sessions Judges may adopt pick and choose policy according to their sweet wills which may create discrimination among two sets of accused alleged to have committed the same offenses under Section 138 of the NI Act.

The court is of the view that the practical anomaly that has been surfaced because of the inconsistent administrative orders by different Sessions Judges in different Sessions Divisions may be cured by the common approach.

Orders of the Court:

The Court thereby Ordered that-

1. All Sessions Judges in all Sessions Divisions in Bangladesh are directed to allocate the cases under Section 138 of the Negotiable Instrument Act, 1881 for trial to the Courts of Joint Sessions Judges only. The cases which have already been transferred or distributed to the Courts of Additional Sessions Judges, or Sessions Judges, in any Sessions Division should immediately be retransferred/ reallocated to the Joint Sessions Judges of the said Division and the concerned Joint Sessions Judges shall continue the trial of such cases from the stage reached by the said Additional Sessions Judges or Sessions Judges.

2. Registrar General of the Supreme Court of Bangladesh and the Registrar of the High Court Division of the Supreme Court of Bangladesh are directed to issue necessary circulars in this regard asking the concerned Sessions Judges for allocation of cases under Section 138 of the Negotiable Instruments Act for trial to the Joint Sessions Judges of divisions concerned within 15 (fifteen) days from the date of receipt of such circular. A copy of this Judgment is sent to the Registrar General of the Supreme Court of Bangladesh as well as the Registrar of the High Court Division of the Supreme Court of Bangladesh for taking necessary steps in this regard.

The concerned authority has published the circular with the Orders given by the Court on 8th March 2021 to be implemented and maintained within 15 days of such publication.