Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 1981 of 2019

Sayed Mahbub Morshed

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

The State and another

                                                             ............Respondents. Ms. Salina Akter Chowdhury, Advocate

      .....For the convict-appellant. Mr. Md. Shibbir Ahmed, Advocate

                        .......For the Respondent No. 2.

Ms. Shahida Khatoon, D.A.G with

Ms. Sabina Perven, A.A.G with,

Ms. Koheenoor Akter, A.A.G.

            .......... For the State.

Heard on 29.07.2024 and

Judgment on 04.08.2024

Sheikh Abdul Awal, J:

This Appeal at the instance of convict appellant, Sayed Mahbub Morshed is directed against the judgment and order of conviction and sentence dated 01.03.2018 passed by the learned Additional Metropolitan Sessions Judge, 2nd Court, Chattogram in Sessions Case No. 960 of  2015  arising  out  of C.R.  Case  No.  170  of  2014 (Panchlaish Zone) convicting the appellant under section

138  of  the  Negotiable  Instruments  Act,  1881  and sentencing him thereunder to suffer simple imprisonment for a period of 1 (one) year and to pay a fine of Tk. 17,50,000/- (Seventeen Lakhs fifty thousand).

The gist of the case is that one, Mohammad Jasim Uddin as complainant filed a petition of complaint being C.R  Case  No.  170  of  2014  before  the  learned Metropolitan Magistrate, 2nd Court, Chattogram against the  accused-appellant  under  section  138  of  the Negotiable Instruments Act, 1881 stating, inter-alia, that out of previous good relationship the accused-appellant took  loan  amounting  to  Taka  17,50,000/-  (Seventeen Lakhs  fifty  thousand)  from  the  complainant  for  the purpose of his business and thereafter to pay the said loan money the accused-appellant issued 4 cheques of Tk.  2,00,000/-+4,00,000/-+1,50,000/-+10,00,000/- =17,50,000/- (seventeen lakhs fifteen thousand) bearing cheque Nos. 0282298 dated 24.11.2013, 0403709 dated 21.11.2013, 0403703 dated 21.11.2013 respectively of A/C No. 004-117354-011, HSBC Bank and cheque No. STB  1858768  dated  21.11.2023  of  A/C  No. 1102101686144001,  BRAC  Bank  Ltd.  in  favour  of complainant  and thereafter, the complainant  presented the said cheque before the Bank for encashment which was dishonoured for insufficient of fund on 10.02.2014

and thereafter, the complainant published a notice in the daily newspaper namely “Dainik Bhorer Kagoj” through his  Advocate  on  28.02.2014  asking  the  accused- appellant to pay the cheques’ amount within 30 days but the accused-appellant did not turn to pay the cheque’s amount and hence, the case.

On receipt of the petition of complaint, the learned  Metropolitan  Magistrate,  4th  Court,  Chattogram

examined  the  complainant  under  Section  200  of  the Code of Criminal Procedure and took cognizance against the  accused-appellant  under  section  138  of  the Negotiable  Instruments  Act,  1881  and  also  issued summon  against  him  fixing  next  date  13.07.2014. Thereafter,  the  accused-appellant  on  05.11.2014 voluntarily surrendered before the Court and obtained bail.

In this background, the case record was sent to the Court  of  the  learned  Metropolitan  Sessions  Judge, Chattogram for trial, wherein the case was registered as Sessions Case No. 960 of 2015 which was subsequently transmitted  to  the  Court  of  the  learned  Additional Metropolitan Sessions Judge, 2nd Court, Chattogram for disposal, wherein the accused-appellant was put on trial to answer a charge under section 138 of the Negotiable

Instruments Act,  1881 to which the accused-appellant pleaded not guilty and prayed to be tried.

At the trial the complainant himself was examined as  PW-1  and  the accused  appellant  also  examined as DW-1.

The defence case as it appears from the evidence of DW-1  that  the  accused  issued  cheques  to  the complainant although he paid cheque’s amount in cash to the complainant but the complainant did not return back  the  said  cheques  saying  he  lost  the  cheques  in question  and  subsequently  filed  the  case  using  those cheques. The allegations as attributed in the petition of complaint are false and concocted, the same does not disclose any offence under section 138 of the Negotiable Instruments Act and the case is liable to be dismissed.

On  conclusion  of  trial,  the  learned  Additional Metropolitan Sessions Judge, 2nd Court, Chattogram by

his  judgment  and  order  dated  01.03.2018  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 01  (one)  year  and  to  pay  a  fine  of  Tk.  17,50,000/- (Seventeen Lakhs fifty thousand).

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 01.03.2018, the convict-appellant preferred this criminal appeal.

Ms.  Salina  Akter  Chowdhury,  the  learned Advocate appearing for the convict-appellant on several occasions took adjournment stating that they will pay the entire cheque’s amount but finally they did not pay the cheque’s amount.

Mr.  Md.  Shibbir  Ahmed,  the  learned  Advocate appearing for the complainant-respondent No.2, on the other hand, supports the impugned judgment and order of conviction and sentence, which was according to him just, correct and proper.

Having heard  the  learned  Advocate  for  the accused-appellant  and  the  learned  Advocate  for  the complainant-respondent No.2 and having gone through the materials on record, the only question that calls for my consideration in this appeal is whether the trial Court committed  any  error  in  finding the  accused- appellant guilty  of  the  offence  under 138  of  the Negotiable Instruments Act, 1881.

On  scrutiny  of  the  record,  it  appears  that  the appellant to pay outstanding dues issued cheques of Tk. 2,00,000/-  +  4,00,000/-  +  1,50,000/-  +  10,00,000/-  = 17,50,000/- (seventeen lakhs fifteen thousand) in favour of  complainant-respondent  No.2  and  thereafter,  the complainant  presented  the  cheque  before  Bank  for encashment which was dishonoured for insufficient of fund  on  10.02.2014  and  thereafter,  the  complainant published a notice in “Dainik Bhorer Kagoj” through his Advocate on 28.02.2014 asking the accused-appellant to pay the cheque’s amount within 30 days but the accused- appellant did not pay any heed to it. It further appears that at the trial the complainant himself was examined as PW-1,  who  in  his  deposition  categorically  stated  the complaint  case  in  details.   This  witness  proved  the petition of complaint and his signature thereon as “Ext. Nos. 1, 1/1, 1/2, 1/3, and 1/4". It further appears that the accused-appellant as DW-1 stated in his deposition that he issued the cheques in question as security of loan money in favour of the complainant and subsequently he paid the loan amount but the complainant did not return those  cheques  saying  that  he  lost  those  cheques  in question. In fact, the complainant does not deserve any outstanding dues as he paid the entire loan money. This witness in his cross-examination stated that- “

”

On an analysis of the petition of complaint together with the petition of complaint and evidence of PW-1 and DW-1 it appears that the complainant after exhausting all the legal formalities filed the case. The plea as taken by the accused-appellant that he paid the cheques amount appears to be baseless and the defence could not prove the same in according with law.

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. Besides, it appears from the record that a single bench of this Court at the time of admission of appeal by order dated 25.02.2019 granted bail  to  the  convict-appellant  for  a  period  of  06(six) months, and on 13.11.2019 the said bail was extended for a period of 1 (one) year and thereafter, no one took any step to extend the order of bail as a result of which, the said  bail  was expired long before on  13.11.2020. 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 01.03.2018 passed by the learned  Additional  Metropolitan  Sessions  Judge,  2nd Court, Chattogram in Sessions Case No. 824 of 2015, 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 Judge of the trial Court below appears to have considered all the material aspects of the case and  justly  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 1 (one) year and to pay a fine of Tk. 17,50,000/- (Seventeen lakhs fifteen thousand).

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 01.03.2018  passed  by  the  learned  Additional Metropolitan Sessions Judge, 2nd Court, Chattogram in Sessions Case No. 960 of 2015 arising out of C.R. Case No. 170 of 2014 against the accused appellant is hereby affirmed.

Since the appeal is dismissed the convict appellant is directed to surrender his bail bond within 3 (three) months from today to suffer his sentence, failing which the Trial Court shall take necessary steps to secure arrest against him.

The complainant-respondent No.2 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.