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Microsoft Word - Crl. Appeal No. 14566 of 2019

             Present:

Mr. Justice Mamnoon Rahman

Criminal Appeal No. 14566 of 2019

Md. Habibur Rahman

                                                         ........Convict-appellant

                 -VERSUS-

The State and another

.…... Respondents

No one appears.

…… 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. Mustafizur Rahman Khan, Sr. Adv. with         Ms. Sumaiya Ifrit Binte Ahmed, Adv.

        Mr. Shafayet Ahmed, Adv.

…… For the respondent No. 2

Heard on: 11.07.2024

And

Judgment on: 1st August, 2024

In the instant appeal, the convict-appellant has challenged the legality of the judgment and order of conviction and sentence dated 02.10.2019 passed by the learned Additional Metropolitan Sessions Judge, 7th Court, Dhaka in Metropolitan Sessions Case No. 177565 of 2017 arising out of Complainant Registrar (CR) Case No. 429 of 2017 convicting the appellant under section 138 of the Negotiable Instruments  Act,  1881  and  sentencing  him  to  suffer  simple imprisonment for a period of one year and also to pay fine of Tk. 25,00,000/- only which is equivalent to the value of the dishonoured cheque.


1

None appeared on behalf of the appellant when the matter is called on for hearing.

Mr.  Md.  Mustafizur  Rahman  Khan,  the  learned  senior Advocate appearing on behalf of the complainant-respondent No. 2 submits that the charge brought against the convict-appellants 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  Advocate  for  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 cheque in question in favour of the complainant- respondent on 25.01.2017 for repayment of outstanding amount of Tk. 25,00,000/- which he took from the complainant. The value of the  cheque  is  Tk.  25,00,000/-.  It  was  dishonoured  by  the  bank concerned on 30.01.2017. The complainant sent the statutory legal notice  to  the  convict-appellant  on  13.02.2017.  The  value  of  the cheque was not paid to the complainant. The case was filed on 16.03.2017. 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. 25,00,000/-. The convict- appellant was fined Tk. 25,00,000/- 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 01(one) year simple imprisonment is set aside. The sentence of fine of  Tk.  25,00,000/-,  which  is  equivalent  to  the  value  of  the dishonoured cheque, is upheld. The convict-appellant has already deposited  Tk.  12,50,000/-  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  cheque  i.e.  Tk.  12,50,000/-  to  the  complainant- respondent No. 2 within 4(four) months from the date of receipt of this order, in default he will suffer simple imprisonment for 01(one) month. 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, they are not exempted from paying the same. In that event, the Court concerned shall realize 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-appellants are released from the bail bond.

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

Mamnoon Rahman, J: