Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 1822 of 2011

Solaiman Khan Shujon

..............Convict-appellant.

-Versus- The State and another.

.....Respondents.

Mr. Md. Aminul Islam, Advocate

.....For the appellant. None appears

 ...For the complainant-respondent No.2

Ms. Shahida Khatoon, D.A.G with

Ms. Sabina Perven, A.A.G with

Ms. Kohenoor Akter, A.A.G

                             .... For the Sate.

Heard on 29.02.2024 and

Judgment on 04.03.2024

Sheikh Abdul Awal, J:

This Appeal at the instance of convict appellant, Solaiman Khan Shujon is directed against the judgment and order of conviction and sentence dated 13.03.2011 passed  by  the  learned  Sessions  Judge,  Jhalakathi  in Sessions Case No. 30 of 2010 arising out of C.R. Case No. 78 of 2009 (Katha) convicting the appellant under section 138 of the Negotiable Instruments Act, 1881 and sentencing him thereunder to suffer imprisonment for a

period of 1 (one) year and to pay a fine of Tk. 1,02,124/- (one Lakh two thousand one hundred twenty four).

Brief fact is that one, Md. Ruhul Amin, associate Manager  (Recovery  and  Legal  Administration),  Brac Bank  Limited,  Amua  Bandar,  Kathalia  Unit,  Police Station-Kathalia,  District-Jhalakathi  on  23.11.2009  as complainant  filed  C.R.  Case  No.  78  of  2009  (Katha) before the learned Court of Senior Judicial Magistrate, Jhalakathi  alleging, inter-alia, that  the  accused- appellant, Solaiman Khan Sujan being proprietor of M/s. Manir  Medical  Hall  took  money  as  loan  from  the complainant  Bank  to  flourish  his  business.  But  the accused-appellant could not reimburse the loan in time according  to  the  terms  and  conditions  of  the  loan sanction letter and therefore, the outstanding dues stood at Tk. 1,02,124 (Taka one lac two thousand one hundred twenty  four)  as  on  02.08.2009.  Thereafter  the complainant  gave  repeated  reminders  to  the  accused- appellant to adjust the loan. In this back ground  the convict-appellant to pay the loan money issued a cheque of Tk 1,02,124/- (one Lakh two thousand one hundred twenty  four)  in  favour  of  the  complainant-bank  and thereafter,  the  complainant-bank  presented  the  said cheque  before  the  Bank  for  encashment,  which  was returned unpaid for insufficient of fund. Thereafter, the complainant  bank  sent  a  legal  notice  through  his Advocate to the convict-appellant asking him to pay the cheque’s  amount  within  30  days  but  the  convict- appellant  did  not  pay  any  heed  to  it  and  hence the complainant filed the case. On receipt of the petitioner of complaint  the  Magistrate  examined  the  complainant under section 200 Cr.P.C. and took cognizance against the appellant under section 138 of the Act and issued summon against accused appellant fixing next date. 

In this  backdrop  the accused-appellant  voluntary surrendered before the learned Court of Senior Judicial Magistrate, Jhalakathi and obtained bail. Thereafter the case was transferred to the Court of learned Sessions Judge,  Jhalakathi  wherein  the  case  was  numbered  as Sessions Case No. 30 of 2010 and the accused-appellant again voluntarily surrendered before the trial Court. The said learned Sessions Judge in the course of trial framed charge  against  the  accused-appellant  in  his  presence under  section  138  of  the  Negotiable  Instrument  Act, 1881  and  the  next  date  of  the  case  was  fixed  on 10.06.201  and  summon  was  issued  upon  the  local witnesses.  The  trial  was  held  in-absentia  against  the appellant since after being enlarged on bail the accused appellant  became  absconding.  During  trial  the

prosecution examined the complainant (P.W. 1) while defence examined none.

After  completion  of  trial,  the  learned  Sessions Judge,  Jhalakathi  by  the  impugned  judgment  dated 13.03.2011  convicted  the  accused-appellant  under section 138 of the Negotiable Instrument Act, 1881 and sentenced  him  there  under  to  suffer  rigorous imprisonment for 1(one) year and to pay a fine of Tk. 1,02,124  (one  Lac  two  thousand  one  hundred  twenty four).

Aggrieved accused appellant then preferred  this criminal appeal.

Mr.  Md.  Aminul  Islam,  the  learned  Advocate appearing  for  the  convict-appellant  at  the  very  outset takes  me  through  the  supplementary  affidavit  dated 11.02.2024 and thereafter, submits that during pendency of the trial the convict-appellant deposited an amount of Taka 50,000/- to the complainant bank and after delivery of  the  judgment  of  the  case  he  deposited  rest  of  the impugned cheque’s money amounting to Taka 52,124/- through treasury challan dated 20.03.2011 and in this way the convict-appellant paid entire impugned cheque’s amount  of Taka  (50,000/-+52,124/-)  =  1,02,124/- (Annexure- F-1, H, H-1 and H-2). He further submits that  since  the  convict-appellant  has  already  paid  the entire cheque’s amount the convict-appellant is entitled to get an order of acquittal.

Ms. Shahida Khatoon, the learned Deputy Attorney General,  on  the  other  hand,  in  the  facts  and circumstances of the case could not oppose the prayer of the learned Advocate for the convict-appellant.

Having heard  the  learned  Advocate  for  the appellant  and  the  learned  Deputy  Attorney  General and gone through the materials on record including the supplementary  affidavit  dated  11.02.2024  with annexures as filed thereto.

On  scrutiny  of  the  record,  it  appears  that admittedly, the convict-appellant to pay the loan money issued  a  cheque  of  Tk  1,02,124/-  (one  Lakh  two thousand  one  hundred  twenty  four)  in  favour  of  the complainant-bank and thereafter, the complainant-bank presented  the  said  cheque  before  the  Bank  for encashment, which was returned unpaid for insufficient of fund. Thereafter, the complainant sent a legal notice through  his  Advocate  to  the  convict-appellant  asking him to pay the cheque’s amount within 30 days but the convict-appellant  did  not  pay  any  heed  to  it  and thereafter, the complainant filed the case.

At the time of trial the complainant himself was examined  as  PW-1  who  in his  evidence  categorically stated the complaint case.

To constitute an offence under Section 138 of the NI Act, the following elements need to be fulfilled:

1. A cheque should have been issued by the payer

for the discharge of a debt or other liability.

2. The  cheque  should  have  been  presented  or

deposited 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.

3. The payee should have issued a notice in writing

to the payer within 30 days of receipt of information regarding the return of the cheque as unpaid from the bank.

4. The payer/ drawer of the cheque should have

paid the cheque amount within 30 days of receipt of the said notice from the payee.

5. If the payer is failed to pay in time the cheque

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.

On an analyses of impugned judgment and order of conviction and sentence dated 13.03.2011 passed by the learned Sessions Judge, Jhalakathi in Sessions Case No. 30 of 2010, 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 Instrument Act are exist in the case.

However,  it  appears  that  the  convict-appellant during  pendency  of  the  trial  deposited  an  amount  of Taka 50,000/- to the complainant bank and after delivery of the judgment of the case he has deposited rest of the impugned  cheque’s  amount  of  Taka  52,124/-  through treasury  challan  dated  20.03.2011  in  this  way  the convict-appellant  having  been  already  deposited  the entire cheque’s amount in favour of the complainant- bank.

On a quarry from the court, Ms. Shahida Khatoon, the learned Deputy Attorney General, submits that as per direction of the court she gave a telephone call to the complainant bank to know about the matter in which the complainant bank informed her that bank received entire

cheque’s money and now bank has no claim against the accused appellant.

In  the  Supreme  Court  of  India,  it  has  been consistently decided that the offence under Section 138 of the Negotiable Instruments Act being compoundable.

Having  regard  to  the  submission  made  by  the learned  Advocate  for  the  convict-appellant  and  the learned Deputy Attorney General, I am of the view that there is no reason not to accept the submission of the learned Advocate for the convict-appellant. Since N.I. Act proceeding arises out of monetary transaction and the  proceeding  is  a  quasi  civil  and  quasi  criminal  in nature, maximum sentence under the law is one year, I am  of  the  view  that  the  accused-appellant  under Negotiable Instruments Act proceeding to pay the entire cheque’s amount has been deposited an amount of Taka 50,000/- to the complainant bank and after delivery of the judgment of the case he has deposited rest of the impugned  cheque’s  amount  of  Taka  52,124/-  through treasury challan dated 20.03.2011 and the same should be accepted by the Court at any stage of the proceeding even at the appellate or revisional stage.

Considering all the facts and circumstances of the case as revealed from the materials on record, I am of the view that the convict-appellant may be acquitted from the  charge  under  section  138  of  the  Negotiable Instruments Act proceeding.

Accordingly, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the  learned  trial  Court  below  is  set-aside  and  the appellant is acquitted of the charge levelled against him under  Section  138  of  the  Act.  Convict  appellant, Solaiman Khan Shujan is discharged from his bail bond and  the  complainant-Respondent  No.2  is  permitted  to withdraw the deposited money amount deposited in the Trial Court by the convict-appellant.

The appeal stands disposed of in the above terms. Send down the lower Court records at once.