Abdur Rahim runs a chemical business in Old Dhaka's Lalbagh. In 2014, he received a cheque to the tune of Tk 330,000 for some goods he had sold to another businessman, Md Asaduzzaman. But the cheque bounced, leaving him with no option other than to seek legal recourse.
Eight years on, Rahim is no closer to recovering the money. All the while, his lawyer's fees have continued to pile up and his business, too, suffers since he has to shut up shop on court dates.
On paper, the trial process for cases involving 'dishonoured' cheques is far more streamlined and less time-consuming than most other matters, as there are fewer witnesses to call on and a relatively short jail term for miscreants at the end of it.
Yet, many people like Rahim end up spending years in pursuit of justice. The ever-growing backlog of cases facing the lower courts in Dhaka also doesn't help matters for litigants either.
However, barring any inherent complexity in the case, it is possible to get to the judgment stage after obtaining the plaintiff's testimony and completing two further steps, if it is contested in 'good faith', according to practitioners.
Generally, the scope of cross-examination is limited for the defence in these cases, but they will invariably apply for adjournments as a 'time-wasting ploy', says Aminul Gani Tito, an experienced criminal litigator. "Many seek to take the matter to the higher courts, but they end up being rebuffed. When so much time is wasted in the course of the trial, plaintiffs are bound to feel disheartened."
And, there was a palpable sense of despondency about Rahim as he reflected on his own experience of the litigation process. In a bid to collect the debt he was owed, Rahim initiated proceedings under section 138 of the Negotiable Instruments Act 1881 (NI Act), which legislates against dishonour of cheques, in December 2014. The case later went to trial at Dhaka's Joint Metropolitan Sessions Judge Court-4.
At one point during the proceedings, the parties reached a compromise, whereby the defendant agreed to pay the dues in small instalments with the permission of the court.
But whenever an instalment falls due, instead of writing Rahim a cheque, the defendant invariably applies to the court for a time extension, he laments. "I also have to pay my lawyer's fee. I still don't know when I'll get the full sum I'm owed. All this toing and froing down to the court while keeping my shop closed is also taking a toll on me."
WHAT IS A 'DISHONOURED' CHEQUE?
Put simply, if a cheque is deposited within six months from its date of issue, but there are insufficient funds in the account on which it was drawn, the bank will decline to pay the amount it was for, or in other words, dishonour the cheque. The bank will then provide a cheque return memo, a document stating the reason for dishonouring the cheque.
The payee, or the recipient of the cheque, must then issue a legal notice to the drawer within 30 days after receiving the cheque return memo from the bank. If the drawer of the cheque fails to pay the money or to provide good reasons for not doing so within 30 days after the receipt of the notice, the payee then has the right to start a criminal case against him. If found guilty, a defendant faces up to 1 year in prison or a fine extending to three times the value of the dishonoured cheque, or both.
HOW MANY CASES ARE PENDING?
In line with a High Court ruling on 18 Oct 2020, cases involving dishonoured cheques under the NI Act are now tried exclusively by joint sessions judges.
A precise figure of the cases pending before the seven joint sessions judges' courts under Dhaka's Metropolitan Sessions Judge's Court is hard to come by. However, Riaz Hossain, a judicial assistant at the Metropolitan Sessions Judge's Court, believes no less than 70,000 cases are awaiting disposal. The number is likely to be several times higher if cases, in which charges are yet to be framed, are taken into account.
There are three factors to consider before starting a case over a dishonoured cheque:
Whether the cheque has been rejected after being presented to a bank for encashment within six months of it being issued.
Whether a legal notice was served on the defendant within 30 days after receiving a cheque return memo.
Whether the case was filed within the stipulated time.
Prosecutors and lawyers representing victims of dishonoured cheques say defendants typically come up with different pretences to eat up as much time as possible for their own ends. But when the court sets hearing dates after long intervals, the victims find themselves caught between a rock and a hard place.
In 2017, Ujjwal Balo's company Quickpower Engineering Limited sold an electrical transformer worth Tk 500,000 to Fujitsu Bangladesh Limited, whose representative, Ibrahim Khalil, drew two cheques on an Exim Bank account to pay it.
But the cheque bounced three times between Jan 11 and 16, 2018, before a cheque return memo was issued by the bank.
In response, Ujjwal sent a legal notice to Ibrahim in keeping with the law. He then filed a case under section 138 of the NI Act on Mar 18, 2018.
On Feb 18, 2019, Ibrahim was indicted by Dhaka's Additional Metropolitan Sessions Judge's Court-3.
In the meantime, Ibrahim petitioned the High Court for an order to dismiss the case. But no such order was forthcoming.
Later, the additional sessions judge fixed May 20, 2019, for the plaintiff's testimony. But the testimony was eventually completed three years later on May 20, 2022, and there's still a ways to go before a verdict is reached.
"People who are coming to court with hopes of collecting the money they're owed are losing faith in the justice system. Scheduling a hearing once a year deprives people of justice,” said Ujjwal.
In 2019, Shishir Kumar Hazra, who runs a boutique house in Shahbagh's Aziz Super Market, filed a case over a dishonoured cheque worth Tk 350,000 against a man named Shafiqul Islam.
The case under section 138 of the NI Act is currently being tried by Dhaka's Joint Metropolitan Sessions Judge's Court-4. After taking evidence in the case on Apr 21, 2022, the next hearing is scheduled to take place almost seven months later on Nov 14.
CALLS FOR MORE TRIAL COURTS
Public Prosecutor Md Abdullah Abu suggested expanding the jurisdiction to try cases of dishonoured cheques to more courts. Previously, various courts could conduct trial proceedings in such matters, but now, these cases are confined to joint district and sessions judges, he noted.
er of cases is also so high that time is running out for disposal.
“Discussions between the law ministry and the Supreme Court administration about increasing the number of courts are ongoing," he said.
Abdullah also flagged the need for more spacious courtrooms as they hardly have any wiggle room during these proceedings due to the sheer number of litigants. "It won't be enough to just increase the number of courts. The focus should also be on freeing up space for judges, lawyers and litigants to sit.”
TIME LIMIT FOR CASE DISPOSAL
Shahinul Islam Rizvi, an empanelled lawyer for 12 financial institutions, including Bank Bima, believes a deadline should be imposed on courts to wrap up the trial of cases involving dishonoured cheques.
“I have several cases which have just one trial date per year. In contrast, there are hearings each month in murder, narcotics and other criminal cases. The law can be amended to include a time limit to dispense with such cases," he said.
Lawyer Pervez Hashem says a single hearing every year in these cases is resulting in long-drawn-out trial proceedings. "Justice delayed is justice denied," he said, citing a popular legal maxim.
"The number of courts and judges capable of trying such cases should be increased. However, there are thousands of cases pending against banks and financial institutions, in which fresh conditions are imposed when a customer's loan is rescheduled.
“As they terminate the old conditions, the earlier loan guarantee cheque no longer has any value. But some lawyers employed by banks look to drag these cases out instead of withdrawing them to further their own interests. As a result, the number of cases doesn't decrease."
[Writing in English by Turaj Ahmad]