IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

       (CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi Criminal Revision No. 1720 of 2018

Md. Talukder Hemayet Uddin

………Convict petitioner -Vs-

The State and another

….respondents Mr. Selim Hossain, Advocate

 ….For the convict petitioner. Mr. Main Uddin Ahmed Chowdhury, Advocate

……..For the respondent No.2  Mr. Md. Shahidul Islam, AAG with Ms. Sharmin Hamid, AAG

..… For the State

Heard on 30.10.2024

Judgment delivered on: 10.11.2024

On an application filed under sections 439 and 435 of the Code of Criminal Procedure, 1898 Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order of conviction and sentence dated 04.04.2018 passed by the Additional  Metropolitan  Sessions  Judge,  Court  No.8,  Dhaka  in Criminal Appeal No. 1336 of 2016 affirming the judgment and order dated 07.04.2016 passed by the Joint Metropolitan Sessions Judge, Court No. 1, Dhaka in Metropolitan Sessions Case No. 2142 of 2014 arising out of C.R. Case No. 1664 of 2013 convicting the petitioner under  section  138  of  the  Negotiable  Instruments  Act,  1881  and sentencing him to suffer imprisonment for 01(one) year and fine of Tk. 11,15,221 should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

The  prosecution  case,  in  short,  is  that  the  accused  Md. Talukder  Hemayet  Uddin  obtained  a  loan  from  the  complainant Islami Bank Bangladesh Ltd, Local Office, Motijheel, Dhaka. After the disbursement of the said loan, the convict petitioner did not pay the loan to the complainant. The complainant issued a final notice on 16.04.2013 to the convict petitioner. Thereafter on 02.06.2013, he issued  cheque  No.  1063422  drawn  on  his  account  No. 20501020100980815 in favour of the complainant bank. The bank presented  the  cheque  on  19.06.2013  for  encashment  which  was dishonoured on the same date with the remark “insufficient funds”. On 30.06.2013, the complainant bank sent a legal notice through registered post but the convict petitioner did not pay the cheque amount in time. Thereafter, the complainant bank filed the case on 20.08.2013.

After  filing  the  complaint  petition,  cognizance  was  taken against the accused and on 18.02.2014 the  case was sent to the Metropolitan Sessions Judge, Dhaka who subsequently transferred the  case  to  the  Joint  Metropolitan  Sessions  Judge,  Court  No.  1, Dhaka  for  trial.  On  18.05.2014,  charge  was  framed  against  the accused under section 138 of the N.I. Act, 1881 which was read over and explained to him and he pleaded not guilty to the charge and claimed to be tried following the law.

The  prosecution  examined  01(one)  witness  to  prove  the charge framed against the accused. After examination of P.W. 1, the accused absconded for which he was not examined under section 342 of the Code of Criminal Procedure, 1898. After concluding the trial,  the  trial  court  by  impugned  judgment  and  order  dated 07.04.2016 convicted the petitioner under section 138 of the said Act and sentenced him to suffer imprisonment for one year and a fine of Tk. 11,15,211 against which he filed Criminal Appeal No. 1336 of 2016 before Metropolitan Session Judge, Dhaka which was heard by Additional Metropolitan Sessions Judge, Court No. 8, Dhaka. The appellate court below by impugned judgment and order affirmed the judgment and order passed by the trial court against which he filed the instant appeal.

P.W. 1 Abul Khair is the representative of the complainant Islami Bank Bangladesh Ltd. He proved the power of attorney as exhibit-1. He stated that the accused issued cheque on 02.06.2013 for payment of a loan amounting to Tk. 11,15,211. Thereafter, he presented the cheque  for encashment which was dishonoured on 19.06.2013. The notice was sent on 30.06.2013 to the accused but he did not pay the cheque amount. Consequently, he filed the case on 25.08.2013. He proved the cheque as exhibit-2, the dishonoured slip as exhibit-3, the legal notice and postal receipt as exhibit-4 series, the  complaint  petition  and  his  signature  as  exhibit-5  series.  The defence did not cross-examine P.W.1.

The learned Advocate Mr. Selim Hossain appearing on behalf of the convict petitioner submits that the accused issued cheque in favour of the complainant bank for payment of the loan and due to insufficient funds, the cheque was dishonoured and after service of the notice, he did not pay the cheque amount. However, he further submits that in the meantime the complainant bank and the convict petitioner settled the dispute out of court and paid 50% of the cheque amount Tk.5,57,605.50 to the bank and he has no objection if the bank withdraw 50% of the cheque amount deposited by the accused in the trial court before filing the appeal. He also submits that the bank  also  issued  a  certificate  on  11.06.2024  regarding  the compromise  made  between  the  parties.  Therefore,  he  prayed  for acceptance of the compromise between the parties.

The learned Advocate Mr. Main Uddin Ahmed Chowdhury appearing on behalf of the complainant bank submits that the convict petitioner issued the disputed cheque in favour of the complainant bank for payment of the loan amounting to Tk. 11,15,211 and after complying  with  all  the  procedures  under  section  138  of  the Negotiable Instruments Act, 1881 the complainant filed the case. Thereby the accused committed offence under section 138 of the said Act. However, he submits that both the complainant and the convict petitioner settled the dispute out of court and the convict petitioner paid Tk. 5,57,605.50 in cash and the bank is willing to withdraw 50% of the remaining cheque amount deposited by the convict  petitioner  before  filing  the  appeal.  He  also  prayed  for acceptance of the compromise made between the parties.

I have considered the submission of the learned Advocate Mr. Selim Hossain who appeared on behalf of the convict petitioner and the  learned  Advocate  Mr.  Main  Uddin  Ahmed  Chowdhury  who appeared on behalf of complainant opposite party No. 2, perused the evidence, impugned judgment and order passed by the trial court and the records.

On perusal of the records, it appears that the complainant Islami Bank issued a certificate on 11.06.2024 (Annexure-A) stating that 50% of the cheque amount Tk. 5,57,605.50 has been paid by the convict petitioner and the bank is willing to receive the 50% of the remaining cheque amount deposited by the convict petitioner before filing  the  appeal  and  both  the  complainant  bank  and  convict petitioner  filed  a  joint  application  on  11.07.2024  making compromise between them. The Negotiable Instruments Act, 1881 is a special law and the offence under section 138 of the said Act is not  compoundable.  Therefore,  the  rule  cannot  be  disposed  of considering the compromise made between the parties. After filing a case under section 138 of the said Act the court shall dispose of the case only considering the merit of the case. There is no scope to accept the compromise made between the parties.

There  is  a  presumption  under  section  118(a)  of  the Negotiable  Instruments  Act,  1881  that  every  negotiable instrument was made or drawn for consideration, and that every such  instrument,  when  it  has  been  accepted,  indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption under Section 118 (a) is rebuttable. The accused did not cross-examine P.W.1. The  evidence  of  P.W.1  as  regards  issuance  of  the  cheque (exhiit-2) by convict petitioner for payment of Tk. 11,15,211 in favour of the complainant bank remains uncontroverted by the defence. Furthermore, the convict petitioner admitted that he issued the cheque in favour of the complainant.

There is no denial of the fact that the convict petitioner issued the cheque. After dishonour of the cheque, he received the notice sent on 30.06.2013 through registered post. It is found that after issuance of the cheque (exhibit-2) the same was dishonoured on 19.06.2013  for  “insufficient  funds”(exhibit-3)  and  the  notice (exhibit-4) under section 138(b) of the said act was served upon the accused and the convict petitioner did not pay the cheque amount pursuant to the notice sent under clause (b) of section 138 of the said Act and the complaint petition was filed in time. Therefore, I am of the  view  that  the  convict  petitioner  committed  an  offence  under section  138  of  the  said  Act  and  the  courts  below  on  proper assessment  and  evaluation  of  the  evidence  passed  the  impugned judgments and orders of conviction.

Considering the gravity of the offence, I am of the view that the ends of justice would be best served if the sentence passed by the courts below is modified as under;

The convict petitioner Md. Talukder Hemayet Uddin is found guilty of the offence under section 138 of the Negotiable Instruments Act, 1881 and he is sentenced to pay a fine of Tk. 11,50,000.

The complainant is entitled to get the cheque amount of Tk. 11,15,211.

The convict petitioner Md. Talukder Hemayet Uddin is directed to pay Tk. 34,789 in the trial court within 30 days from the date of receipt of a copy of this judgment failing which the trial court is directed to take necessary steps following law.

Since the complainant opposite party No. 2 admitted that he already received Tk. 5,57,605.50, the complainant bank is only entitled to get 50% of the remaining cheque amount of Tk. 5,57,605.50 deposited by the convict petitioner in the trial court before filing the appeal.

The  Rule  is  disposed  of  with  modification  of  the sentence.

Send down the lower Court’s records at once.