In the Supreme Court of Bangladesh High Court Division

(Criminal Appellate Jurisdiction)

 Present:

Mr. Justice Md. Shohrowardi

Criminal Appeal No. 1784 of 2020

Shah  Md.  Ruhul  Amin  Patowary (Juwel)

...Convict-Petitioner

          -Versus-

The State and another

...Opposite parties

Mr.Md. Shameem Khaled, Advocate

...For the appellant

Mr. Md. Rashidul Islam, Advocate

……..For the respondent No. 2

Mr. S.M Golam Mostofa Tara, DAG with Mr A. Mannan, AAG with

……………..for the State.

Heard  on  12.10.2023,  15.10.2023  and 05.03.2024

Judgment delivered on 11.03.2024

This  appeal  under  Section  410  of  the  Code  of  Criminal

Procedure, 1898 is directed against judgment and order dated 24.10.2019 passed by Sessions Judge, Chandpur in Session Case No. 226 of 2019 arising  out  of  C.R  Case  No.  171  of  2018  (Hajigonj)  convicting  the appellant under Section 138(1) of the Negotiable Instrument Act, 1881 and sentencing him thereunder to suffer rigorous imprisonment for 01 (one) year and fine of Tk. 13,90,000/- (Thirteen lakhs ninety thousand) only.

The prosecution case, in short, is  that the accused  Shah Md. Ruhul Amin Patowary issued cheque No. 7031626 on 26.12.2017 drawn on  Al-Arafa  Islami  Bank  Limited,  Hajigonj  Branch,  Chandpur  for payment of Tk.13,99,000 in favour of the complainant. On 17.04.2018 the complainant presented the cheque for encashment, but the same was dishonoured  on  17.04.2018  with  a  remark  “insufficient  funds”. Thereafter, the complainant served a legal notice on 18.04.2018 to the

accused but he did not pay the cheque amount within time and thereby committed offence under section 138 of the Negotiable Instrument Act, 1881.

After  taking  cognizance,  the  accused  voluntarily  surrendered before the Court below and obtained bail and thereafter the case record was sent to the Sessions Judge, Chandpur and the case was registered as Session Case No. 226 of 2029. The Sessions Judge, Chandpur framed charge under section 138(1) of the Negotiable Instruments Act, 1881 against the accused which was read over and explained to him and he pleaded not guilty to the charge.

The prosecution examined one witness to prove the charge. At the time of examination of the prosecution witness, the accused was absconding.  After  concluding  the  trial,  the  trial  court  by  impugned judgment  and  order  dated  24.10.2019  convicted  the  accused  under section 138(1) of the Negotiable Instruments Act, 1881 and sentenced him thereunder to suffer rigorous imprisonment for 01(one) year and to pay a fine of Tk. 13,90,000.

P.W. 1 Most. Nazma Begum stated that he deposed on behalf of the complainant Md. Millad Hossain who reside out of country and the complainant authorized her to depose in court. The accused took loan of Tk. 13,99,000 from the complainant. He issued a cheque on 26.12.2017 drawn on his account for payment of the said amount. The complainant presented  the  said  cheque  for  encashment  which  was  dishonored  on 17.04.2018. After that a legal notice was served upon the accused on 18.04.2018  through  registered  post  but  he  did  not  pay  the  cheque amount. She proved the complaint petition as exhibit-1 and signature of the complainant as exhibit-1/1. She proved the power of attorney as exhibit-2, the cheque as exhibit-3, the dishonored slip as exhibit-4, the legal notice with AD as exhibit- 5 series.

The learned Advocate Mr. Md. Shameem Khaled appearing on behalf of the convict petitioner submits that both the parties settled the

dispute  out  of  court  and  accused  paid  the  cheque  amount  to  the complainant. Therefore, he prayed for allowing the appeal.

The  learned  Advocate  Mr.  Md.  Rashidul  Islam  appearing  on behalf of the complainant respondent No. 2 submits that both the parties settled the dispute out of court and he received the entire cheque amount from the accused.

I have considered the submission of the learned Advocates of both parties, evidence of prosecution witness, the impugned judgments and orders passed by the courts below and the records.

On perusal of the records, it appears that The accused issued a cheque on 26.12.2017 drawn on his account in favour of the complainant and he presented the said cheque for encashment which was dishonored on 17.04.2018. After that a legal notice was served upon the accused on 18.04.2018 through  registered post  with  AD  but  he did  not  pay the cheque amount. P.W. 1 proved the complaint petition as exhibit-1 and the signature of the complainant as exhibit-1/1. P.W. 1 proved the power of  attorney  as  exhibit-2,  the  cheque  as  exhibit-3,  dishonored  slip  as exhibit-4,  legal  notice  with  AD  as  exhibit-  5  series.  The  convict petitioner did not pay the cheque amount within time.

The Negotiable Instruments Act, 1881 is a special law and the offence  under  section  138  of  the  said  Act  is  not  compoundable. Therefore, the parties are not entitled to compromise the dispute out of court.

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  neither  adduced evidence nor cross-examined P.W. 1 to rebut the presumption under Section 118(a) of the said Act. Therefore, I am of the view that the accused  issued  the  cheque  in  favour  of  the  payee-complainant  for consideration. After service of notice in writing the accused failed to pay the cheque amount. Thereby the accused committed an offence under Section  138  of  the  Negotiable  Instruments  Act,  1881  and  the complainant filed the case following procedures provided in Section 138 of the Negotiable Instruments Act, 1881. The prosecution proved the charge against the accused beyond all reasonable doubt and the trial Court on correct assessment and evaluation of evidence legally passed the impugned judgment and order.

Considering  the  gravity  of  the  offence  and  facts  and circumstances of the case, I am of the view that ends of justice would be best served, if the sentence passed by the trial court is modified as under:

The accused Shah Md. Ruhul Amin Patowary(Juwel) 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.  13,90,000. The complainant is entitled to get the fine amount.

Since  the  accused  appellant  already  paid  the  entire  cheque amount to the complainant respondent No.2, he is not required to deposit the fine amount again.

In view of the above observation, findings and reasoning the appeal is disposed of with modification of the sentence.

Send down the lower Court’s records at once.