Prematurity should be cured first

Appellate Division
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md. Abdul Wahhab Miah J
Syed Mahmud Hossain J
AHM Shamsuddin
Chowdhury J
Zahidul Islam (Md)
…………..Appellant
vs
Md Kamal Hossain
and another ………….
…….. Respondents
Judgment July 23rd, 2013.
Code of Criminal Procedure (V of 1898)
Section 561A
Negotiable Instruments Act (XXVI of 1881)
Section 138(b)(c)
Legislature has not created any absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to Section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. Prematurity shall be cured the moment the period of thirty days expires and the payment of the dishonoured cheque is not made within the said period. . ….. (11)
Bivash Chandra Biswas, Advocate-on-Record-For the Appellant.
Taufique Hossain, Advocate-on-Record-For Respondent No. 1.
Mahmuda Begum, Advocate-on-Record-For Respondent No.2.  
Judgment
Md Abdul Wahhab Miah J: This appeal, by leave, has arisen out of the judgment and order dated the 25 day of March, 2009 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.6908 of 2008 making the Rule absolute.
2. Facts giving rise to this appeal are that the appellant as complainant (hereinafter referred to as the complainant) filed a petition of complaint before the Chief Magistrate, Rajshahi being CR Case No.218 of 2007 against respondent No.1, Md Kamal Hossain (hereinafter referred to as the respondent), alleging the commission of an offence by him punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act. 1881). In the petition of complaint, it was alleged, inter alia, that the respondent issued a cheque bearing No. 0823202 dated 15-4-2007 drawn on Mercantile Bank Limited, Rajshahi for Taka 3,30,00,000 in favour of the complainant towards repayment of his (the respondent’s) outstanding dues. The complainant, on the same date of the issuance of the cheque, deposited the same in his account being No.010-7729-0000-1899 of the same bank, but the cheque was returned on the ground of insufficiency of fund. Then the complainant by a legal notice dated 22-4-2007 demanded from the respondent the payment of the amount of the said dishonoured cheque and though the respondent received the notice on 2-l4-2007, he did not pay the money to the complainant within thirty days from the date of receipt of the notice for which the complainant was compelled to file the petition of complaint.
3. The Chief Metropolitan Magistrate. Rajshahi took cognizance of the offence against the respondent under section 138 of the Act, 1881 by issuing summons. On receipt of the summons the respondent surrendered before the Chief Metropolitan Magistrate, Rajshahi on 21-6-2007 and he was enlarged on bail. The case being triable by a Court of Sessions, the case records were transmitted to the Court of Sessions Judge, Rajshahi. The case was registered as Sessions Case No.416 of 2007. The learned Sessions Judge, by order dated 20-7-2007, took cognizance of the offence against the respondent under Section 138 of the Act, 1881 and by order dated 8-8-2007 framed charge against him under the said section of the Act, 1881 and fixed the next date on 9-9-2007 for examination of the witnesses. On 9-9-2007, on the prayer of the prosecution, the hearing of the case was adjourned to 8-10-2007 and by the same order, the case was transferred to the Court of Assistant Sessions Judge (now Joint Sessions Judge) Additional Court for disposal. The respondent filed an application before the High Court Division under Section 561A of the Code of Criminal Procedure (the Code) for quashing the proceedings of the Sessions case in question, mainly, on the ground that statutory notice demanding from the respondent the payment of the amount of the dishonoured cheque, was received by him on 24-4-2007, but the petition of complaint giving rise to the Sessions case was 1led on 23-5-2000, i.e. 1(one) day before the cause of action to file the petition of complaint arose as provided in clause (c) of the proviso to Section 138(1) of the Act, 1881 and, as such, the impugned sessions case was nothing but an abuse of the process of the Court and the same was liable to be quashed.
4. The application gave rise to Criminal Miscellaneous Case No.6908 of 2008. The criminal miscellaneous was contested by the complainant opposite party by filing a counter affidavit.
5. A Division Bench of the High Court Division on hearing the Rule issued in the miscellaneous case by the impugned judgment and order made the same absolute and quashed the proceedings of the Sessions case in question (Sessions Case No.416 of 2007) accepting the ground of the respondent taken in the application filed under Section 561A of the Code.
6. Being aggrieved by and dissatisfied with the impugned judgment and order of the High
Court Division, the complainant appellant files Criminal Petition for Leave to Appeal No.179 of 2009 before this Division and leave was granted on l6-11-2009 to consider the submission of his learned Counsel to the effect:
“The learned counsel for the petitioner submitted that the institution of the aforesaid CR Case before the expiry of 30(thirty) days from the receipt of the legal notice by the accused respondent is nothing but a premature institution and before the High Court Division it was argued that if the cause (If action matured during pendency of the proceedings, the defect of prematurity of the cause of action could be cured and inspite of that the High Court Division erroneously made the Rule absolute.”
7. Mr Bivash Chandra Biswas, learned Advocate-on-Record, appearing for the appellant has reiterated the submission recorded in the leave granting order.
8. Mr Taufique Hossain, learned Advocate-on-Record, appearing for the respondent, on the other hand, supported the impugned judgment and order passed by the High Court Division.
9. The only point to be decided in this appeal is as to whether the sessions case in question which arose out of a petition of complaint filed by the appellant as complainant alleging the commission of an offence by the respondent punishable under section 138 of the Act, 1881, could be quashed on the ground that the same was filed before expiry of the period of thirty days from the date of the receipt of the notice issued under clause (b) of the proviso to section 138 of the Act, 1881 by which demand was made from the respondent to pay the amount of the dishonoured cheque.
10. From the facts stated in the petition of complaint as well as in the impugned judgment and order, it appears that after the cheque was dishonoured the notice mandated in clause (b) of the proviso to sub-section (1) of Section 138 of the Act, 1881 was given to the respondent on 24-4-2007 demanding from him the payment of the amount of the dishonoured cheque to the complainant and it was received by him on that very date, but the complainant filed the petition of complaint on 23-5-2007, i.e. l(one) day before expiry of the period of thirty days as stipulated in clause (c) of the proviso to the section.
11. From a reading of clauses (b) and (c) of the proviso to sub-section (1) of Section 138 of the Act, 1881, it appears to us that the purpose of the notice is to give chance to the drawer of a dishonoured cheque to make the payment of the amount of such cheque to the payee or, as the case may be, to the holder in due course of the cheque within thirty days from the date of receipt of the notice issued under clause (b) thereof. Section 141 of the Act, 1881 has detailed the procedure as to how cognizance shall be taken by a Court in respect of an offence punishable under Section 138 thereof and which Court shall try such offence. Clause (b) of Section 141 of the Act, 1881 has clearly mandated that a complaint alleging an offence punishable under Section 138 thereof 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. In other words, no complaint alleging an offence punishable under Section 138 of the Act, 1881 shall be entertained if such complaint is not made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. And definitely, the cause of action to file such a complaint would arise after the failure of the drawer of the cheque to make payment of the amount of the dishonoured cheque 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 notice given under clause (b) of the proviso to section 138. But the legislature has not created any absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. Filing of a petition of complaint alleging the commission of an offence punishable under Section 138 of the Act, 1881 before expiry of thirty days from the date of receipt of the notice as stipulated in clause (c) of the proviso to the Section as it happened in the instant case, at best, can be said premature and that prematurity shall be cured the moment the period of thirty days expire and the payment of the dishonoured cheque is not made within the said period. And in spite of the filing of the petition of complaint prematurely, there would be no bar on the part of the drawer of the dishonoured cheque to make the payment of the amount of such cheque to the payee or, as the case may be, to the holder in due course of cheque within thirty days as stipulated in clause (c) of the proviso to Section 138 and filing of a petition of complaint prematurely, in no way, can be a ground to oust a payee or, as the case may be, to the holder in due course of the cheque from proceeding with his case to haul up a person here the respondent who commits an offence punishable under the Section and to quash a criminal proceeding arising out of such petition of complaint. In quashing the proceedings of the sessions case in question, the learned Judges failed to consider that when the criminal miscellaneous case was heard by them, the prematurity in filing the petition of complaint alleging the commission of offence punishable under Section 138 of the Act, 1881, stood cured as the period of thirty days mandated in clause (c) to the proviso thereof had expired on 24-5-2000.
12. It is also a fact that till the date of hearing of the criminal miscellaneous case, the respondent did not make payment of the amount of the dishonoured cheque to the complainant, the payee although from the date of receipt of the notice on 24-4-2007 till that date almost two years elapsed. Had the respondent paid the amount of the dishonoured cheque within the period as stipulated in Clause (c) of the proviso to sub-Section (1) of section 138, i.e. within 24-5-2007, the sessions case in question could not be proceeded with although the same was filed before the expiry of thirty days, i.e. on 29th day, because of such payment, no cause of action to proceed with the case would have subsisted.
13. For the discussions made above, we find merit in the appeal and accordingly, the same is Bench allowed. The impugned judgment and order of the High Court Division quashing Sessions Case Criminal No.416 of 2007 arising out of CR Case No.218 of 2007 is set-aside. The concerned Joint Sessions Judge, Rajshahi is directed to proceed with the trial of the Sessions case in accordance with law and dispose of the same expeditiously.