IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

       (CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi Criminal Revision No. 1722 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. 1337 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. 2141 of 2014 arising out of C.R. Case No. 1662 of 2013 convicting the petitioner under  section  138  of  the  Negotiable  Instruments  Act,  1881  and sentencing him to suffer imprisonment for 05(five) months and fine of Tk. 4,32,542 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 disbursement of the said loan, the convict petitioner did not pay the loan  to the complainant. The complainant issued  final  notice on 16.04.2013 to the convict petitioner. Thereafter on 30.05.2013, he issued  cheque  No.  1063423  drawn  on  his  saving  Account  No. 20501020100980815 for payment of Tk. 4,32,542 in favour of the complainant bank. The bank presented the cheque on 19.06.2013 for encashment which was dishonored on the same date with a remark “insufficient funds”. On 30.06.2013, the complainant bank sent a legal  notice  through  registered  post  with  AD  but  the  convict petitioner did not pay the cheque amount in time. Thereafter, the complainant bank filed the case on 30.07.2013.

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  Metropolitan  Joint  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 trial, the trial court by judgment and order dated 07.04.2016 convicted the petitioner under section 138 of the said Act and sentenced him to suffer imprisonment for 05(five) months and fine of Tk. 4,32,542 against which he filed Criminal Appeal No. 1337 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  Md.  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 30.05.2013  for  payment  of  a  loan  amounting  to  Tk.  4,32,542. 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 20.08.2013. He proved the cheque as exhibit-2, dishonoured  slip  as  exhibit-3,  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. Salim 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, due to hardship he could not pay the cheque amount. However, he 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.  2,16,271  to  the  bank  and  he  has  no objection  if  the  bank  withdrawn  50%  of  the  cheque  amount deposited by the accused in the trial court before filing the appeal. 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 cheque in favour of the complainant bank for payment of the loan amounting to Tk. 4,32,542 and after dishonour of the cheque 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.  2,16,271  in  cash  and  the  bank  is  willing  to withdraw remaining 50% of the 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  and  the  convict  petitioner  filed  an  application  for compromise stating that 50% of the cheque amount of Tk. 2,16,271 has been paid by the convict petitioner and the complainant bank is willing  to  receive  50%  of  the  cheque  amount  deposited  by  the convict petitioner before filing the appeal and both the complainant bank and convict petitioner filed a joint application on 10.11.2024.

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 by the court 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. 4,32,542 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 with AD. 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 notice sent under the 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 offence under section 138 of the said Act and the courts below on proper assessment and evaluation of the evidence passed the impugned judgment and order 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 are 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. 4,80,000.

The complainant is entitled to get the fine amount Tk. 4,32,542 awarded by this court.

The Rule is disposed of with modification of the sentence.

The convict petitioner Md. Talukder Hemayet Uddin is directed to pay Tk. 47,458 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. 2,16,271, the complainant bank is only entitled  to  get  50%  of  the  remaining  cheque  amount  Tk. 2,16,271 deposited by the convict petitioner in the trial court before filing the appeal.

Send down the lower Court’s records at once.