In 1983, Jabed Hossain borrowed Tk10 lakh from his friend Asadur Rashid Don, a clothes trader in the capital's Gulshan, to import apparel. As collateral, he gave Don two cheques of his own account at Agrani Bank's Motijheel branch.
Jabed was supposed to return the money within three months but he started to come up with excuses and put off the payment. Don then submitted the cheques to the bank but those were dishonoured.
Next, he sent a legal notice to Jabed but to no avail. He then filed a cheque dishonour case against Jabed with a Dhaka court in July 1984.
After three years the court gave a verdict in favour of Don. In the verdict, the court ordered Jabed to pay Tk16 lakh, including legal costs and interest, to Don. Jabed was also sentenced to six months in jail.
Jabed paid a portion of the money in the verdict. He then appealed to the High Court in late 1987 and fwas out on bail. The appeal hearing continued for seven years and the High Court ruled in favour of Don, upheld the judgment of the judicial court, and ordered Jabed to pay an additional Tk6 lakh in interest and litigation costs.
The lawyer of the case said the High Court had changed five benches in seven years to dispose of the appeal.
In early 1994, Jabed appealed to the Appellate Division against the High Court verdict. The appeal has not been disposed of in 27 years. In this period, 16 chief justices have retired.
Don died in 2008. Since then, his son Ashrar Rashid Plaban has been continuing the case.
Plaban, who is an importer of pharmaceutical machinery, told The Business Standard the pursuit of justice for all these years have left him exhausted.
"My father got a fair trial in the judicial court but the proceedings are now stuck because of the appeal. I do not go to the court anymore. My lawyer inquires once or twice a year. The appeal is still awaiting the final hearing."
"My father lent Tk10 lakh to his friend. He had got the money by selling eight kathas of land in Gulshan's Kalachandpur. He had inherited the property from his father. Now I have given up the hope of getting the money back," he added.
Plaban's lawyer Dulal Sarker said a petition had been filed before the Covid-19 pandemic last year to hold a final hearing on the appeal but it had not yet been included in the cause list.
Khandaker Mahabub Uddin Ahmed was Jabed's lawyer in the appeal but he died in 2014. Now Abdul Baset Majumder is running the case. He said, "Jabed hired me for the appeal at the end of 2019. But it was not possible to go to the Appellate Division because of the pandemic."
The appeal would be brought to the notice of the Appellate Division for hearing as soon as possible, he added.
Former chief justice ABM Khairul Haque told The Business Standard cheque dishonour cases are increasing at an alarming rate and there should be a monitoring team of the Supreme Court to find out such old cases and dispose of those quickly.
"Once the team prepares the list and submits it to the chief justice, the latter will then take initiatives to dispose of the cases."
Supreme Court and other sources said about Tk9,600 crore remains stuck with different banks, institutions, and individuals in 7,69,000 cheque dishonour cases in the Appellate Division, the High Court, and judicial courts across the country.
Of the lawsuits, the majority are bank appeals and cases. All the 4,000 writs filed with the High Court are against banks.
Moreover, of the 3,600 appeals in the Appellate Division, 2,900 were filed by banks, and the remaining 800 by individuals. Of the 49,000 appeals in the High Court, 38,400 were filed by various organisations and individuals against verdicts delivered in favour of banks by judicial courts, and the remaining 10,600 were lodged by individuals against individuals.
In 2003, Abdul Khaleq of Narsingdi, owner of a textile colour importer Jerin Enterprise, took out a Tk50 lakh loan from Brac Bank. He mortgaged his organisation's land and also submitted five security cheques of his Pubali Bank account. In 2008, the amount of the loan stood at Tk1.43 crore, including interest.
The loan was not repaid and the security cheques the bank had received from the borrower were dishonoured. The bank then filed a Tk1.43 crore cheque dishonour case. The verdict pronounced in 2010 came in favour of the bank.
Khaleq then filed a writ petition with the High Court challenging the verdict instead of appealing against the verdict. Following the writ petition, the High Court stayed the judgment of the judicial court for six months and issued a rule asking why the verdict would not be declared illegal. The bank has not received the money yet as the final hearing on the rule has not been held.
Mohammad Sharif Al Mamun, a lawyer for Brac Bank, said, "The amount of money that the borrower owes the bank, including interest, cannot be recovered by selling the mortgaged property. That is why the cheque dishonour case was filed. Several petitions have been filed to hold a hearing on the rule but that has not happened so far."
Why case disposal is so slow
Prabir Niyogi, a company law expert and a senior Supreme Court lawyer, told The Business Standard there is a law that such cases should be disposed of by judicial courts within six months.
He said there is sluggishness in the disposal of all cases, including cheque dishonour ones.
"The main reason is that the jurisdiction, power, and time limit for case disposal the government has given to various courts are not followed. There may be some limitations in the judiciary as well, but this cannot go on like this. The government has to take appropriate steps to dispose of these cases."
But another Supreme Court lawyer Dr Shahdeen Malik said lawyers of banks are mainly responsible for the non-disposal of such cases.
"This is because it has been seen that banks' lawyers do not attend hearings at the High Court and the Appellate Division. There may be a reason why they do not attend but I do not want to say that," he said.
The constitution expert also said, "However, it has been seen that giving the excuse of the absence of bank lawyers in hearings, the other party has sought time again and again for hearing."
Most judicial court verdicts in favour of plaintiffs
A review of the verdicts given by judicial courts operating under a special branch of the Supreme Court shows that 100% of the verdicts in cheque dishonour cases in the last two years had been in favour of plaintiffs.
An official of the branch said verdicts may go in favour of defendants in some cases if cases are filed over mistakes or frauds.
High Court not upholding judicial court verdicts
Tony Rozario from Tejgaon area took out a loan of Tk7.5 lakh from HSBC Bank's Gulshan branch in 2006. He was supposed to repay Tk10 lakh, including interest on the five-year loan.
At the end of five years, an instalment of Tk3.3 lakh became due.
In 2011, the bank mentioned Tk10 lakh in the security cheque Tony had given them while taking out the loan. It submitted the cheque, which was dishonoured. Then it filed a case against Tony. The verdict went in favour of the bank.
Tony then appealed by submitting to the High Court a bank statement that showed how much he had repaid, and the court delivered the verdict in his favour. He then paid Tk3.3 lakh to the bank as per the verdict.
Supreme Court sources said the High Court Division in 2019 had disposed of about 2,170 appeals and 1,300 writs filed against judicial court verdicts given in favour of banks. Of these, about 1,400 were similar to that of Tony.
Of the 1,300 writs, about 1,000 went in favour of individuals.
Faults in filing cheque dishonour cases
Shah Mohammad Ahsanur Rahman, a bank and company law expert, said when a bank files a case against a borrower, the bank must mention the loan details as per the directives of the Appellate Division.
"When the bank approved the loan, the amount and term of the loan, how much the borrower repaid and how much he owes, including interest – everything has to be written in detail."
Explaining further, he said, "Banks now take blank security cheques from clients before issuing loans. When they file cheque dishonour cases as per the negotiable instruments act, they mention the total amount of debt together with interest. They also mention the same amount in the cheque before the cheque is dishonoured but do not specify how much the client has repaid."
"When cheque dishonour cases are filed with judicial courts, no other testimony is heard, except that of the plaintiff. Also, judges do not pay attention to the process of filing cases. Although most of the verdicts delivered by judicial courts go in favour of plaintiffs, those judgments are not later upheld by the High Court. The High Court modifies most of the judgments.
"In case of cheque dishonour cases involving individuals, cheques are often given to lenders without mentioning the amount of money. Verdicts on those cases are not upheld in the High Court either."
Slow pace at judicial courts
In the past, there was no specific court to hear cases involving cheques. Hearings on such cases would be held in additional sessions judge courts.
A recent High Court judgment directed that trials of cheque transaction and dishonour cases have to be conducted only in joint sessions judges courts.
Retired district judge Syed Aminul Islam, former registrar general of the Supreme Court, said there is a crisis of judges in the judiciary.
"Cheque case trials progress slowly due to the pressure of other cases. Moreover, more than 150 additional district judge posts in each district court are vacant."
"To address this slowdown, the number of courts and judges has to be increased. In addition, proper training should be provided to judges," he added.
How to expedite trials
Barrister Khan Mohammad Shamim Aziz, a lawyer for the Bangladesh Bank, said the solution to this problem is very simple.
"In 2014, the Supreme Court of India gave a landmark judgment, saying there was no alternative to establishing separate courts to hold cheque dishonour case trials. The then chief justice of India directed the government to set up separate courts and appoint retired judges there. The government then took steps accordingly in some places. The same can be done in Bangladesh," he said.
"Separate benches can also be set up in the High Court. Judicial courts have been given a time limit to conduct these cases but the High Court and the Appellate Division do not have any such limit. The chief justice can set a time limit. At the same time, a monitoring cell has to be formed for the disposal of cases."
About 35 lakh cheque dishonour cases are pending in Indian courts. A five-member Supreme Court bench headed by Chief Justice Sharad Arvind Bobde has taken initiatives of its own accord to expedite the disposal of these cases, describing the situation as concerning.
The Indian Supreme Court on 10 March constituted a committee headed by former Mumbai High Court judge RC Chavan to give a report on how these cases could be disposed of quickly.
It said that other members of the committee would be officers of the department of financial services not below the rank of additional secretary; officers of the department of justice, the ministry of corporate affairs, the department of expenditure, and the ministry of home affairs; representatives of the Reserve Bank of India and the Indian Banking Association to be nominated by its chairman, and representatives of the National Legal Services Authority and the solicitor general or his nominee.
The committee was asked to prepare a report within three months and submit it to the Supreme Court.
Meanwhile, Law Minister Anisul Huq told The Business Standard, "A guideline will be formulated with officials concerned on how to dispose of these cases fast."