SARWAR HOSSAIN KHAN VS STATE 66 DLR AD 283

Analysis of the Fact:

In this case the Respondent as compliant filed two CR cases before the Chief Metropolitan Magistrate, Dhaka complaining the commission of an offence punishable under section 138 of the Negotiable Instruments Act,1881 by the accused petitioner. The accused petitioner was enlarged on bail by the concerned Metropolitan Magistrate and then by the respective Learned Additional Sessions Judge. The accused petitioner filed a separate application in the respective Sessions case under section 265C of the Code of Criminal Procedure for discharging him from the cases. The respective Learned Additional Metropolitan Sessions rejected the application and framed the charge against the accused petitioner under section 138 of the Act,1881 and fixed the dates for trial. At the stage of the proceedings the accused petitioner filed two separate applications before the High Court Division under section 561A of the Code for quashing the Session Case in question and obtained two rules. But the High Court Division discharged both the rules. Being aggrieved with the judgments of the High Court Division the accused petitioner filed Criminal Petition for leave to Appeal and both the leave petitions were dismissed. Then a review petition was submitted against the judgment.

Argument from the Petitioner:

It was argued that The Negotiable Instrument Act,1881 was a Special Law  and its provisions had to be construed strictly. The respective petitions of complaint alleging the commission of an offence punishable under section 138 of the Act,1881 giving rise to the Sessions cases in question was filed before expiry of thirty days as stipulated in clause © of the proviso to section 138(1)  was barred by law. But this Division did not consider the point. So, the judgment passed by this Division needed to be reviewed.

Argument from the Respondent:

No argument was provided in this review petition.

Issue:

Whether there was any error in the pronounced judgment of the High Court Division or not?

Decision and Reasoning behind the decision:

The petitions were dismissed because there was no error in the judgment passed by this Division sought to be reviewed in affirming the judgment passed by the High Court Division.

The above decision was taken on the following grounds:

Filing of a petition of complaint alleging the commission of an offence punishable under section 138 of the Act,1881 before the expiry of thirty days from the date of receipt of the notice as per clause © of the section 138 can be said premature. The prematurity would not be a bar on the part of the drawer of the dishonored cheque to make the payment of the amount of such cheque to the payee. So, Filing a petition of compliant prematurely could not be a ground to oust a payee and to quash a criminal proceeding arising out of such petition of compliant.

Principle:

 The principle came out from this case is that a judgment may be granted to review if there is a lack of detailed discussion on the concerned issue. 

Importance of this case:

In this case the nature of the provision of review of judgments or orders by Appellate Division under the article 105 of our Constitution. When it is seen that an elaborate discussion has been absent on the main point in a case and appeal has also been dismissed without assigning the proper grounds then review of the judgment may be sought before the Appellate Division.