Present:

Mr. Justice Mamnoon Rahman

Criminal Appeal No. 2215 of 2019

Md. Shahidul Islam

                                                         ........Convict-appellant

                 -VERSUS-

The State and another

.…... Respondents

Mr. Md. Aminul Islam, Adv.

…… for the appellant Mr. Mohammad Taifoor Kabir, DAG with

Mr. Md. Lokman Hossain, AAG

Mr. Md. Hatem Ali, AAG

…… For the Respondent No. 1 Mr. Md. Matiur Rahman, Advocate

…… For the respondent No. 2

Heard & Judgment on: 07.11.2023

In the instant appeal, the convict-appellant has challenged the legality of the judgment and order of conviction and sentence dated 29.01.2018 passed by Learned Additional Metropolitan Session Judge, 4th Court, Dhaka in Metro. Sessions Case No. 3140 of 2016 arising out of C. R. Case No. 220 of 2015 convicting the appellant under Section 138 of Negotiable Instruments Act, 1881 and sentencing him rigorous imprisonment for 06 (six) months and a fine of Tk. 3,00,000/- (three lac) which is equivalent to the value of the dishonoured cheque.

Mr. Md. Aminul Islam, the learned Advocate appearing for the convict-appellant, submits that the appellant is in no way involved in the alleged offence and he has falsely been implicated in this case and the impugned judgment and order of conviction

has been passed only on the basis of P.W-1 of the complainant- respondent No. 2 and not by any independent/neutral witness and as such the same is liable to be set aside for the ends of justice.

Mr. Md. Matiur Rahman, the learned Advocate appearing for the complainant-respondent No. 2 submits that the charge brought against the convict-appellant under Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘the Act, 1881’) has been proved beyond reasonable doubt and therefore, the appeal is liable to be dismissed.

I have heard the learned Advocates for the petitioner- appellant as well as the complainant-respondent No. 2 and perused the materials on record.

It appears from the petition of complaint, the deposition of PW1 (complainant) and the documentary evidences that the convict-appellant issued three cheques in question (1,00,000/- each) in favour of the complainant-respondent on 18.03.2015 for repayment of outstanding amount of Tk. 3,00,000/- which he took from the complainant. The value of the cheques is Tk. 3,00,000/-. The cheque were dishonoured by the bank concerned on 22.03.2015. The complainant sent the statutory legal notice to the convict-appellant on 07.04.2015. The value of the cheques were not paid to the complainant. Hence, the case. P.W.1 proved the prosecution case.

I have no hesitation to hold that the complainant-respondent has proved compliance of the procedure laid down in Section 138 of the Act, 1881 in filing the case. The case was filed within one month of the date on which the cause of action had arisen under clause (c) of the proviso to Section 138. The complainant also proved consideration against which the cheque was drawn and that he is the holder of the cheque in due course. Hence, in my view, the impugned judgment and order of conviction does not suffer from any illegality or infirmity. The trial Court correctly found the appellants guilty of the charge.

Section 138 of the Act, 1881 provides that the offence of dishonour of cheque is punishable with imprisonment for a term which may extend to 1 (one) year, or with fine which may extend to thrice the amount of the cheque, or with both. Sub-section (2) of Section 138 provides,  “Where any fine is realised under sub- section (1), any amount up to the face value of the cheque as far as is covered by the fine realised shall be paid to the holder”. Thus, the criminal proceeding under Section 138 serves two purposes: firstly, to punish the offender and secondly, to recover the value of the cheque. The object of adding sub-section (2) to Section 138 is to alleviate the grievance of the complainant. In the instant case, the value of the dishonoured cheque is Tk. 3,00,000/-. The convict- appellant was fined Tk. 3,00,000/- which does not require any interference.

Now, I turn to the sentence of imprisonment. There can be no dispute in so far as the sentence of imprisonment is concerned that it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration the facts and circumstances of each case. It is not only the rights of the offenders which are required to be looked into at the time of the imposition of sentence, but also of the victims of the crime and society at large, also by considering the object sought to be achieved by the particular legislation. Considering the facts and circumstances of the case and the object of the law, I am of the view that the sentence of imprisonment would be a harsh sentence having no penal objective to be achieved. Hence, the sentence of imprisonment is set aside.

I note that the trial court has not passed any default order i.e. imprisonment in default of payment of the fine. When an offender is sentenced to fine only, the Court has the power to make a default order under Section 388 of the Code of Criminal Procedure (in short the ‘Cr.P.C.’). Section 423(1)(d) of the Cr.P.C. empowers the Appellate Court to pass any consequential or incidental order that may be ‘just and proper’. Since, this Court has already set aside the sentence of imprisonment, it would be just and proper to pass a default order.

In view of the foregoing discussions, the order of the Court is as follows:

The conviction of the appellants under Section 138 of the Act, 1881 is upheld, but the sentence is modified. The sentence of 6(six) months rigorous imprisonment is set aside. The sentence of fine of Tk. 3,00,000/-, which is equivalent to the value of the

dishonoured cheques, are upheld. The convict-appellant has already deposited Tk. 1,50,000/- in the court below before filing the appeal. The Court concerned is directed to give the said deposit to the complainant-respondent No.2 forthwith. The convict- appellant is directed to pay the remaining portion of the value of the dishonoured cheques i.e. Tk. 1,50,000/- to the complainant- respondent No. 2 within 4(four) months from the date of receipt of this order, in default they will suffer simple imprisonment for 3(three) months. If the convict-appellant do not pay the remaining portion of the fine as ordered or opts to serve out the period of imprisonment in lieu of payment of fine, he is not exempted from paying the same. In that event, the Court concerned shall realise the fine under the provisions of Section 386 of the Cr.P.C.

In the result, the appeal is dismissed with modification of sentence and with directions made above. The convict-appellant is released from the bail bond.

Send down the lower Court’s records (LCR)(if any) at once. Communicate the judgment and order to the Court concerned forthwith.

(Mamnoon Rahman, J:)