In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction)

Present

Mr. Justice Md. Khairul Alam

Criminal Appeal No. 383 of 2021 Md. Elias Kanchon.

…….Convict appellant. -Versus_

The State and another.

……Respondents. Mr. Muhammad Tarikul Islam, Advocate

…….For the convict appellant. Mr. Sheikh Muhammad Serajul Islam with

Ms. Lucky Ahamed, Advocates

…..For the respondent No.2.

Heard on 26.11.2024 and Judgment on 27.11.2024.

Md. Khairul Alam, J.

This appeal is directed against the judgment and order of conviction and sentence dated 17.07.2016 passed by the learned Sessions Judge, Munshiganj in Sessions Case No. 243 of 2015 arising out of C.R. Case No. 148 of 2015 convicting the appellant and another under section 138 of the Negotiable Instruments Act, 1881  (shortly,  the  NI  Act)  and  sentencing  them  to  suffer imprisonment for 06 (six) months and also to pay a fine of Taka 20,00,000/-.

The prosecution case, in short, is that the present respondent No. 2 as complainant filed C.R. Case No. 148 of 2015 before the court of Judicial Magistrate, Cognizance Court No.3, Munshiganj implicating the present convict appellant and another as accused alleging, inter-alia, that to disburse the liability the accused issued three cheques in favour of the complainant. The total sum of the said three cheques was Tk. 20,00,000/-. The complainant placed the said cheques before the bank for encashment, but the cheques were dishonored on the ground of insufficiency of funds. Hence, the  complainant  filed  the  case  following  all  the  statutory provisions.

Ultimately,  the  case  was  renumbered  as  Sessions  Case No.243 of 2015 and was tried by the learned Sessions Judge, Munshiganj who by the judgment and order of conviction and sentence dated 17.07.2016 convicted the appellant and another under section 138 of the NI Act and sentenced them as aforesaid.

Mr.  Muhammad  Tarikul  Islam,  the  learned  Advocate appearing on behalf of the convict-appellant at the outset of the hearing informs this Court that meanwhile the accused amicably settled the issues by paying the amount covering the amount of the

cheque to the complainant and accordingly, he prays for quashing the impugned judgment and order of conviction and sentence.

Mr. Sheikh Muhammad Serajul Islam, the learned Advocate appearing on behalf of respondent No. 2 has approved the said submission.

In the case of Subash Chandra Sarker vs. The State and another reported in 26BLT(AD)28 a petition for leave to appeal was filed by a convict challenging his conviction and sentence passed under section 138 of the NI Act. In the said petition for leave to appeal a joint application was filed for recording and disposal of the case as per terms of the compromise setting aside the  judgment  and order of  conviction  and  sentence.  Our  apex Court dispossessed of the said petition for leave to appeal in the following manner.

“A  Joint  Application  has  been  filed  for  recording compromise and disposal of the case as per terms of the compromise  setting  aside  the  judgment  and  order  of conviction and sentence passed against the petitioner. The complainant and the convict are present in the Court. We have perused the compromise petition. The section is not a compoundable one. However, since the parties have settled matter amicably and the complainant has admitted before this Court that he received the half of the amount of the dishonoured cheque in the cash and the rest of the amount was  deposited  with  the  Sessions  Court  before  filing  the appeal before the High Court Division. We are inclined to reduce the sentence to the period already undergone and accordingly the sentence awarded against the petitioner is reduced  to  the  period  undergone.  We  also  direct  the Sessions  Judge,  Gazipur  to  allow  the  complainant  to withdraw  the  money  deposited  by  the  convict  without making any delay.

This petition is disposed of accordingly.” Considering  the  submissions  advanced  by  the  learned Advocates  of  both  sides  and  also  considering  the  facts  and circumstances of the case, I am inclined to reduce the sentence to the period already undergone in the light of the above view of our apex Court.

Accordingly, the appeal is dismissed with the modification of the sentence awarded against the convict appellant, by reducing the sentence awarded against him to the period undergone.

The learned Session Judge, Munshiganj is hereby directed to allow the complainant to withdraw the money deposited by the convict without making any delay.

Send down the lower court’s record and communicate this order at once.

Accordingly, the appeal is dismissed with the modification of the sentence awarded against the convict appellant, by reducing the  sentence  awarded  against  the  petitioner  to  the  period undergone.

The learned Session Judge, Munshiganj is hereby directed to allow the complainant to withdraw the money deposited by the convict without making any delay.

Send down the lower court’s record and communicate this order at once.

Kashem/B.O