Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 6091 of 2020

Md. Makhon Miah

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

The State and another

                                                             ............Respondents.

Mr. Uzzal Bhowmick with

Mr. Ashish Karmokar, Advocate

      .....For the convict-appellant. Mr. Mohammed Ismail Hossain, 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 09.07.2024, 11.07.2024 and Judgment on 15.07.2024

Sheikh Abdul Awal, J:

This Appeal at the instance of convict appellant, Md. Makhon Miah is directed against the judgment and order  of  conviction  and  sentence  dated  05.09.2019 passed by the learned Additional Metropolitan Sessions Judge (Metropolitan Sessions Judge in Charge), Sylhet in Special Sessions Case No. 2805 of 2013 arising out of

C.R. Case No. 1260 of 2012 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. 25,00,000/- (Twenty five Lakhs) only.

The  gist  of  the  case  is  that  one,  Riaz  Khan, Assistant  Manager,  M/S.  Monayem  Khan  Babul  as complainant filed a petition of complaint being C.R Case No.  1260  of  2012  before  the  learned  Chief  Judicial Magistrate, Sylhet against the accused-appellant under section  138  of  the  Negotiable  Instrument  Act,  1881 stating, inter-alia, that the accused-appellant in order pay the  outstanding  dues  of  business  transaction  issued  a cheque of Tk. 25,00,000/-(Twenty five) bearing cheque No. 0027885 dated 30.05.2012 of A/C No. 34045272, Janata Bank Ltd., Sylhet Corporate Branch, Sylhet in favour of complainant and thereafter, the complainant presented  the  said  cheque  before  the  Bank  for encashment which was retuned unpaid for insufficient of fund on 29.08.2012 and thereafter, the complainant sent a  legal  notice  through  his  Advocate  to  the  convict- appellant on 24.09.2012 asking him to pay the cheque’s amount within 30 days but the accused-appellant in spite of  receiving  the  said  notice  did  not  turn  to  pay  the cheque’s amount and hence, the case.

On receipt of the petition of complaint, the learned  Chief  Judicial  Magistrate  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 24.01.2013.  Thereafter,  the  accused-appellant  on 24.01.2013 voluntarily surrendered before the Court and obtained bail.

In this background, the case record was sent to the Court  of  the  learned  Sessions  Judge,  Sylhet  for  trial, wherein the case was registered as Sessions Case No. 477 of 2013 which was subsequently transmitted to the Court of the learned Additional Metropolitan Sessions Judge,  Sylhet  for  disposal  wherein  the  case  was renumbered as Sessions Case No. 2805 of 2013.

Ultimately, the accused-appellant was put on trial before  the  learned  Additional  Metropolitan  Sessions Judge, Sylhet 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 also exhibited some documents to prove its case while the defence examined 2 witnesses namely DW-1 and DW-2.

On  conclusion  of  trial,  the  learned  Additional Metropolitan  Sessions  Judge  (Metropolitan  Sessions Judge in charge), Sylhet by his judgment and order dated 05.09.2019  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. 25,00,000/- (Twenty five Lakhs).

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 05.09.2019, the convict-appellant preferred this criminal appeal.

Mr.  Ashish  Karmokar,  the  learned  Advocate appearing  for  the  convict-appellant  submits  that  the appellant  never  took  any  cash  amount  from  the complainant, he issued the cheque as security of land transfer but after transferring the land the complainant deliberately did not return the chque in question and the appellant side as DW-1 and DW-2 categorically stated the  same  before  the  trial  Court but  the trial Judge without  considering  the  same  from  a  correct  angle mechanically held that the accused-appellant guilty of the  offence  under  section  138  of  the  Negotiable Instrument Act, 1881 and sentenced him thereunder to suffer imprisonment for a period of 1 (one) year and to pay  a  fine  of  Tk.  25,00,000/-  (Twenty  five  Lakhs),  which  is  liable  to  be  set-aside.  Finally,  the  learned Advocate submits that the provision of section 9 and 43 of the Negotiable Instruments Act was not complied in this case, which occasioned a failure of justice.

Mr.  Mohammed  Ismail  Hossain,  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.  He submits that the defence plea is false, baseless and the defence  by  adducing  evidence  could  not  establish  its case  that  he  issued  the  cheque  as  security  of  land transfer. Besides, the accused-appellant after receiving legal notice did not give any reply to the complainant, which suggests that the subsequent plea of the accused- appellant is devoid of substance.

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 Instrument Act, 1881.

On  scrutiny  of  the  record,  it  appears  that  the appellant to pay outstanding dues issued a cheque of Tk. 25,00,000/-(Twenty  five  Lakhs)  in  favour  of complainant-respondent  No.2  and  thereafter,  the complainant  presented  the  cheque  before  Bank  for encashment which was retuned unpaid for insufficient of fund on 29.08.2012 and thereafter, the complainant sent a  legal  notice  through  his  Advocate  to  the  convict- appellant on 24.09.2012 asking him to pay the cheque’s amount within 30 days but the convict-appellant in spite of receiving the said notice 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 in his cross-examination stated that- “

” It furthger appears that the accused-appellant

as DW-1 stated in his deposition that he used to do land purchase  and  sale  business  and  accordingly  he transferred land to Monayem Khan. This witness also stated that- “

” This

witness in his cross-examination stated that- “

” DW-2 gave

similar type of evidence as like as DW-1.

On an analysis of the petition of complaint together with  the  evidence  of  PW-1  and  DW-1  and  DW-2  it appears  that  the  complainant  after  exhausting  all  the legal formalities filed the case. PW-1 in his evidence categorically stated that the complaint case in details and he denied the suggestion given by the defence that the cheque in question was given to him as security of the land transfer for time being. It further appears that in- spite of receiving legal notice the accused appellant did not  give  any  reply  to  it.  The  plea  as  taken  by  the

accused-appellant 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.

On an analyses of impugned judgment and order of conviction and sentence dated 05.09.2019 passed by the learned  Additional  Metropolitan  Sessions  Judge (Metropolitan  Sessions  Judge  in  charge),  Sylhet  in Sessions Case No. 2805 of 2013, 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 her thereunder to suffer simple imprisonment for a period of 1 (one) year and to pay a fine of Tk. 25,00,000/-  (Twenty  lakhs).  No  interference  is, therefore, called for.

In the result the appeal is dismissed. The impugned judgment  and  order  of  conviction and  sentence dated 05.09.2019  passed  by  the  learned  Additional Metropolitan  Sessions  Judge  (Metropolitan  Sessions Judge in charge), Sylhet in Sessions Case No. 2805 of

2013 arising out of C.R. Case No. 1260 of 2012 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.