Md. Sirajuddwla Vs. The State and Ors. [2016] 1LNJ(HCD)177.

The case involved Md. Sirajuddula as the accused-petitioner and Eastern Bank as the complainant
in all six cases. The accused had obtained credit facilities from Eastern Bank and, in order to
discharge his loan liability, had provided separate cheques to the bank. When these cheques were
presented for encashment, they were dishonoured due to insufficient funds in the accused's
account.
Following the statutory procedure under Section 138 of the Negotiable Instruments Act, 1881,
Eastern Bank filed six separate criminal cases against the accused. These cases were ultimately
transferred to the Court of Additional Metropolitan Sessions Judge. Simultaneously, on July 31,
2012, the bank had filed Artha Rin Suit No. 90 of 2012 before the Artha Rin Adalat recovery of
Tk. 39,12,98,043.39 from the accused for the same loan transactions.
Petitioner instant applications filed under section 561A of the Code of Criminal Procedure in
which he prayed for quashing the respective proceedings under section 138 of the Negotiable
Instruments Act, 1881.

1. Assignment: Case Summary
Course Title: Law of Criminal Procedure-II
Course Code: LLBH 311
Case Name: Md. Sirajuddwla Vs. The State and Ors. [2016] 1LNJ(HCD)177.

Submitted to:
Mirza Farzana Iqbal Chowdhury
Assistant Professor
Department of Law,
Green University of Bangladesh

Submitted by:
Syed MD Alamgir Hussain
ID: 223011029
Department of Law
Green University of Bangladesh

2. 1. Case Name: Md. Sirajuddwla Vs. The State and Ors. [2016] 1LNJ(HCD)177.
2. Synopsis of the Facts:
The case involved Md. Sirajuddula as the accused-petitioner and Eastern Bank as the complainant
in all six cases. The accused had obtained credit facilities from Eastern Bank and, in order to
discharge his loan liability, had provided separate cheques to the bank. When these cheques were
presented for encashment, they were dishonoured due to insufficient funds in the accused's
account.
Following the statutory procedure under Section 138 of the Negotiable Instruments Act, 1881,
Eastern Bank filed six separate criminal cases against the accused. These cases were ultimately
transferred to the Court of Additional Metropolitan Sessions Judge. Simultaneously, on July 31,
2012, the bank had filed Artha Rin Suit No. 90 of 2012 before the Artha Rin Adalat recovery of
Tk. 39,12,98,043.39 from the accused for the same loan transactions.
Petitioner instant applications filed under section 561A of the Code of Criminal Procedure in
which he prayed for quashing the respective proceedings under section 138 of the Negotiable
Instruments Act, 1881.
3. Rules of Law and Cases Referred:
• Constitution of Bangladesh – Article 35(2) Principle of double jeopardy protection;
• Code of Criminal Procedure, 1898: Section 344, Section 386(3), Section 403, Section
545(1)(b), Section 561A.
• Negotiable Instruments Act, 1881: Sections 6, 20, 43, 117, 118(a), 118(b), 138, 138A,
and 141.
• Artha Rin Adalat Ain, 2003: Sections 5(1) and 41.
Case Laws Cited
• Monzur Alam (Md) vs. State and another - 55 DLR (AD) 62 - Authority on
simultaneous criminal and civil proceedings
• Shamsul Islam Chowdhury vs. Uttara Bank - 11 BLC 116 - Same transaction
proceeding simultaneously
• Majed Hossain and others vs. State - 17 BLC (AD) 177 - Section 138 has nothing to
do with loan recovery

3. • Pankajhai Nagjibhai Patel vs. State of Gujarat - AIR 2001 SC 567 - Compensation in
lieu of fine
• Vasu Vydier vs. State of Kerala - 1975 CrLJ 494, 497 (Ker) - Stay of criminal
proceedings when civil suit pending
• Shaikh Davud vs. Yusuff - (1954) Travan 1326 - Stay to prevent prejudice to civil trial
• R. vs. The Overseers of the Parish of Tonbridge - (1884) 13 QBD 339 - "Absurd
inconvenience" test

3. Issue:
• Whether criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881,
can proceed simultaneously with a civil suit under the Artha Rin Adalat Ain, 2003, for the
same loan transactions between the same parties.
• Whether such parallel proceedings for recovery of the same debt constitute double jeopardy
under Article 35(2) of the Constitution of Bangladesh and Section 403 of the Code of
Criminal Procedure.
• Whether the inherent power of the High Court Division under Section 561A of the Code
of Criminal Procedure should be exercised to quash or stay the criminal proceedings in
such circumstances.
4. Argument:
Petitioner: The petitioner argued that the cheques in question were post-dated blank cheques given
to the bank merely as security against the loan, which the bank subsequently filled in and used at
its own discretion, making such use illegal. His primary contention was that the bank was pursuing
double proceedings for the same cause of action, having already filed an Artha Rin Suit claiming
the same amount that covered the value of the cheques, pursuing both criminal and civil
proceedings simultaneously would amount to double jeopardy and result in unjust enrichment for
the bank.
The petitioner further argued that the criminal proceedings under Section 138 were legally barred
by the non-obstante clause contained in Section 5 of the Artha Rin Adalat Ain, 2003. Additionally,
he raised common defences typical in such cases, claiming the cheques were obtained through
undue influence, coercion, or duress, and that he had no option but to sign the blank cheque.

4. Respondent: The bank's counsel opposed the Rules seeking quashing of the criminal proceedings,
though the judgment does not detail the specific arguments made. Significantly, the learned
Advocate for the complainant bank did not dispute the crucial factual matrix that both the Artha
Rin Suit and the criminal cases arose out of the same loan transaction and that the amount claimed
in the civil suit covered the value of the cheques in question.
The bank implicitly argued for its right to pursue both criminal and civil remedies simultaneously,
likely contending that these are different types of proceedings with different legal objectives - one
being punitive in nature while the other being for debt recovery. The bank would have maintained
that it was entitled to pursue all available legal remedies for the dishonoured cheques.
5. Decision:
The court concluded that while criminal proceedings under Section 138 cannot generally be
throttled on the ground of pendency of an Artha Rin Suit, the present case fell within the category
of "rarest of rare cases" where the inherent power of the High Court Division under Section 561A
of the Code of Criminal Procedure should be exercised. The court ordered that the criminal
proceedings should be stayed during the pendency of the Artha Rin Suit to prevent abuse of the
process of the court and to secure the ends of justice.
6. Ratio Decidendi:
On the Principle of Double Jeopardy: The court comprehensively analysed the principle of double
jeopardy as incorporated in Article 35(2) of the Constitution of Bangladesh and established under
Section 403 of the Code of Criminal Procedure. The court explained that this principle protects a
person from being tried for the same offence for which he has already been convicted or acquitted.
However, the protection is available only when both proceedings are criminal in nature and both
prosecutions are for the same offence.
In the present case, the court noted that they were dealing with two different types of proceedings
- one criminal and the other civil. Therefore, the principle of double jeopardy had no application
to the issue at hand. The court established by citing relevant precedents, including Monzur Alam
(Md) vs. State and another and Shamsul Islam Chowdhury vs. Uttara Bank.

5. On Parallel Proceedings: While acknowledging that it is not an invariable rule that parallel
proceedings cannot exist on the same facts in criminal and civil courts, the court recognized that
Section 344 of the Code of Criminal Procedure vests power in the court to postpone or adjourn
criminal proceedings "for any other reasonable cause." The court noted that proceedings in
criminal court should be stayed or adjourned where identical issues based on the same facts as in
criminal cases are involved in suits pending in civil court.
The court applied the principle that a construction resulting in hardship, serious inconvenience,
injustice, absurdity, or anomaly should be rejected. In this case, the court identified a potential for
"absurd inconvenience": if the accused were sentenced to pay a fine under Section 138, he would
face execution proceedings, and simultaneously, he might face execution proceedings under the
Artha Rin Adalat Ain for the same loan transactions. If he decided to appeal both the criminal
sentence and the civil decree, he would need to deposit 50% of the dishonored cheque amount and
50% of the decretal amount, which together would almost cover the entire claimed amount, leading
to unjust enrichment for the bank.
On Inherent Power under Section 561A: The court established that inherent power under Section
561A can be exercised to give effect to any order under the Code, prevent abuse of court process,
or secure the ends of justice, but emphasized it must be used "sparingly with circumspection and
in the rarest of rare cases." Despite this general restraint, the court found this case exceptional,
falling within the "rarest of rare" category requiring intervention.
The court justified exercising inherent power to give effect to Section 344 CrPC (which allows
adjournment for reasonable cause), prevent abuse of process (where simultaneous proceedings
would force the accused to deposit nearly the entire claimed amount for appeals), and secure justice
by preventing "absurd inconvenience" and unjust enrichment. The court applied the principle that
law must not cause "absurd inconvenience," finding that requiring 50% deposits for both criminal
and civil appeals would create such inconvenience. Though exercised suo moto without specific
request from the accused, the court made the stay conditional - if the accused caused delay in the
civil suit, the criminal stay would be vacated, preventing manipulation while protecting against
manifest

6. 7. Importance of the case:
Through this judgment, the court established important legal principles. It reaffirmed that criminal
and civil proceedings arising from the same transaction are generally permissible simultaneously,
and that Section 138 proceedings are not barred by the Artha Rin Adalat Ain, 2003. However, it
also established that in exceptional cases involving potential unjust enrichment and absurd
inconvenience, criminal proceedings may be stayed as a matter of justice and fairness.
The court emphasized that the inherent power should be exercised sparingly and with
circumspection, only in the rarest of rare cases where such intervention is necessary to give effect
to the Code of Criminal Procedure, prevent abuse of court process, or secure the ends of justice.
This judgment thus provides important guidance on balancing the rights of financial institutions to
pursue multiple remedies with the protection of accused persons from potential abuse of legal
process and unjust consequences.