Present
Mr. Justice Sheikh Abdul Awal
Criminal Appeal No. 4858 of 2018
A.K. Fazlul Hoque (Kamal)
.............Convict-appellant.
-Versus-
The State and another
............Respondent.
No one appears
.....For the convict-appellant.
Ms. Shahida Khatoon, D.A.G with
Ms. Sabina Perven, A.A.G with,
Ms. Koheenoor Akter, A.A.G.
............. For the respondent No.1 No one appears
............. For the respondent No.2 Judgment on 06.06.2024.
Sheikh Abdul Awal, J:
This criminal appeal at the instance of convict appellant, A.K. Fazlul Hoque (Kamal) is directed against the impugned judgment and order of conviction and Sentence dated 15.03.2016 passed by the learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka in Metropolitan Sessions Case No. 8291 of 2014 arising out of C.R. Case No. 663 of 2014 convicting the accused appellant under section 138 of the Negotiable Instruments Act, 1881 and sentencing him thereunder to suffer simple imprisonment for a period of 03 (three) months and to pay a fine of Tk. 1,50,000/-(one Lac and fifty thousand) only.
The gist of the case is that one, M.M. Shahid Ullah as complainant filed a petition of complaint being C.R. Case No. 663 of 2014 in the Court of the learned Chief Metropolitan Magistrate, Dhaka against the convict- appellant under section 138 of the Negotiable Instruments Act, 1881 stating, inter-alia, that convict-appellant out of good relationship took money as loan from the complainant respondent No. 2 for his business purpose and thereafter, the accused to pay the loan amount on 08.04.2014 issued a cheque being No. MCA 9432501 amounting to Tk. 1,50,000/- (one Lac and fifty thousand) of Islami Bank Bangladesh in favour of the complainant and thereafter, the complainant presented the said cheque in bank on 21.04.2014 for encashment but the said cheque was dishonoured for insufficient of fund and thereafter, the complainant sent a legal notice through his Advocate to the accused appellant on 20.05.2014 asking him to pay the cheque’s amount within 30 days but the accused-appellant did not pay any heed to it and hence , the case.
On receipt of the petition of complaint, the learned Metropolitan Magistrate, Dhaka examined the complainant under Section 200 of the Code of Criminal Procedure on 17.07.2014 and thereafter took cognizance against the accused-appellant under section 138 of the Negotiable Instrument Act, 1881 and also issued summon against the accused appellant fixing next date on 20.08.2014.
In usual course the case record was sent to the Court of the learned Metropolitan Sessions Judge, Dhaka, wherein the case was registered as Metropolitan Sessions Case No. 8291 of 2014. Ultimately the case was transmitted to the Court of the learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka for disposal. The trial was held in absentia against the accused appellant as the accused appellant was absconding.
At the trial the complainant himself was examined as PW-1 and also exhibited some documents to prove its case while the defence examined none.
On conclusion of trial, the learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka by the
impugned judgment and order dated 15.03.2016 found the accused appellant guilty under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him thereunder to suffer simple imprisonment for a period of 03 (three) months and to pay a fine of Tk. 1,50,000/-(one Lac and fifty thousand) only.
Aggrieved by the aforesaid impugned judgment and order of conviction and sentence dated 15.03.2016, the convict-appellant preferred this criminal appeal.
No one found present to press the appeal on repeated calls inspite of fact that this criminal appeal has been appearing in the list for hearing with the name of the learned Advocate for the appellant since long.
In view of the fact that this petty old criminal appeal arising out of 03 (three) months sentence under the Negotiable Instruments Act, 1881 has been dragging before this Court for more than 5 years, I am inclined to dispose of it on the basis of the materials on record.
On perusal of record, it is found that the complainant after exhausting all the legal formalities filed C.R. Case No. 663 of 2014 under section 138 of the Negotiable Instruments Act, 1881 against the convict appellant and during trial the complainant himself was examined as PW-1 and exhibited some documents to prove its case.
To constitute an offence under Section 138 of the NI Act, the following elements need to be fulfilled:
the discharge of a debt or other liability.
by the payee within a period of six months from the date of drawing of the cheque or within the period of validity of the cheque, whichever is earlier.
the payer within 30 days of receipt of information regarding the return of the cheque as unpaid from the bank.
the cheque amount within 30 days of receipt of the said notice from the payee.
amount, the payee should have filed a complaint within one month.
On an overall consideration of the facts, circumstances and the materials on record, it can be easily suggested that all the above quoted key elements are exist in the present case. Besides, it appears from the record that a single bench of this Court at the time of admission of appeal by order dated 28.05.2018 granted bail to the convict-appellant for a period of 01(one) year, which was lastly extended on 18.06.2019 for a period of 01(one) year, and thereafter, no one took any steps to extend the order of bail as a result of which, the said bail was expired long before on 18.06.2020. Therefore, in the attending facts and circumstances of the case, I find no difficulty whatever in holding that the convict-appellant is a fugitive from law and justice.
In the case of Anti-Corruption Commission Vs. Dr. HBM Iqbal Alamgir, reported in 15 BLC(AD) 44, it has been held that the Court would not act in aid of an accused person, who is a fugitive from law and justice.
On an analyses of impugned judgment and order of conviction and sentence dated 15.03.2016, passed by the learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka, I find no flaw in the reasonings of the trial Court or any ground to assail the same inasmuch as all the key elements of Section 138 of Negotiable Instruments Act are exist in the case.
The learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka appears to have considered all the material
aspects of the case and justly convicted the accused appellant under Section 138 of the Negotiable Instrument Act, 1881 and sentenced him thereunder to to suffer simple imprisonment for a period of 03 (three) months and to pay a fine of Tk. 1,50,000/-(one Lac and fifty thousand) only.
On the above, 2 (two) counts, this appeal must fail.
In the result, the appeal is dismissed. The impugned judgment and order of conviction and Sentence dated 15.03.2016 passed by the learned Additional Metropolitan Sessions Judge, 6th Court, Dhaka in Metropolitan Sessions Case No. 8291 of 2014 arising out of C.R. Case No. 663 of 2014 against the accused appellant is hereby affirmed.
Since the appeal is dismissed the convict appellant, A.K. Fazlul Hoque (Kamal) is directed to surrender his bail
bond within 3 (three) months from today to suffer his sentence, failing which the Trial Court concerned shall take necessary steps to secure arrest against him.
The complainant is permitted to withdraw half of the cheque’s amount as deposited in the Trial Court by the convict-appellant for the purpose of preferring this Criminal Appeal.
Send down the lower Court records at once.