Present:

Mr. Justice Md. Shohrowardi

Criminal Appeal No. 7421 of 2021 Md. Shah Alam Dhali

...Appellant

-Versus-

The State and another

...Respondents

No one appears.

...For the appellant

Ms. Bijoya Barua, Advocate

...For the complainant-respondent No. 2 Heard on 31.10.2024 and 06.11.2024 Judgment delivered on 10.11.2024

This  appeal  under  Section  410  of  the  Code  of  Criminal Procedure, 1898 is directed challenging the legality and propriety of the  impugned  judgment  and  order  dated  21.11.2016  passed  by Additional Sessions Judge, Chandpur in Session Case No. 132 of 2015  arising  out  of  C.R  Case  No.  397  of  2014  (Chandpur) convicting  the  appellant  under  Section  138  of  the  Negotiable Instruments  Act,  1881  and  sentencing  him  thereunder  to  suffer rigorous imprisonment for 1(one) year and fine of Tk. 1,95,036.

The prosecution case, in short, is that the accused Md. Shah Alam Dhali took loan on 28.07.2011 from the complainant BRAC Bank  Limited.  He  did  not  pay  the  loan  in  time.  Thereafter  on 12.07.2014 the accused issued Cheque No. 5669057 drawn on his Account  No.  0902202117788001  maintained  with  BRAC  Bank Limited, Chandpur Branch for payment of loan. The complainant- bank presented the said cheque on 22.07.2014 for encashment which was dishonoured with a remark ‘insufficient funds’. Thereafter, the complainant-bank  sent  notice  on  04.08.2014  to  the  accused  for payment of the cheque amount which he received on 07.08.2014 but he did not pay the cheque amount. Thereafter, the complainant filed the complaint petition on 29.09.2014.

At the time of filing the complaint petition, the complainant was examined under Section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate was pleased to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881.  The  Chief  Judicial  Magistrate  sent  the  case  record  to  the Sessions Judge, Chandpur.

During trial, the charge was framed on 13.09.2015 under Section 138 of the Negotiable Instruments Act, 1881. At the time of framing  the  charge,  the  accused  was  absconding.  After  that,  the Sessions Judge, Chandpur by order dated 04.02.2016 sent the case to the  Additional  Sessions  Judge,  Chandpur.  During  the  trial,  the complainant was examined as P.W. 1 to prove the charge against the accused.  The  defence  did  not  cross-examine  P.W.  1.  After examination of the prosecution witness, the accused was examined under Section 342 of the Code of Criminal Procedure, 1898 and he declined to adduce any D.W. After concluding the trial, the trial Court by impugned judgment and order convicted the accused as stated above against which he filed the instant appeal.

P.W. 1 Md. Saifuzzaman is the Associate Manager, BRAC Bank Limited, Chandpur Branch. He stated that he got the power of attorney from the bank. He proved the power of attorney as exhibit 1. He stated that the accused Shah Alam Dhali obtained a loan from the bank and on 12.07.2014 he issued a cheque for payment of loan amounting  to  Tk.  1,95,036.  The  bank  presented  the  cheque  on 22.07.2014. Thereafter, the bank sent a notice to the accused on 04.08.2014 and he received the notice on 07.08.2014 but he did not pay the cheque amount and after complying with the procedures under Section 138 of the Negotiable Instruments Act, 1881 he filed the case. He proved the complaint petition as exhibit 2 and the signature of Md. Alamgir Hossain as exhibit 2/1. He stated that Md. Alamgir Hossain served along with him in the bank. He proved the cheque  as exhibit 3, dishonour slip as exhibit 4, legal notice as

exhibit 5, postal receipt as exhibit 6 and acknowledgement due as exhibit 7. The defence did not cross-examine P.W. 1.

No one appears on behalf of the appellant.

Learned Advocate Ms. Bijoya Barua appearing on behalf of the complainant-respondent No. 2 submits that the appellant issued a cheque on 12.07.2014 drawn on his account maintained with BRAC Bank Limited, Chandpur Branch for payment of loan amounting to Tk. 1,95,036 received by the appellant from the bank. The cheque was presented on 22.07.2014 but the same was dishonoured on the ground ‘insufficient funds’. Thereafter, the bank issued notice to the accused. Despite the service of notice upon the accused, he did not pay  the  cheque  amount.  Thereafter  complying  with  all  the procedures provided in Section 138 of the Negotiable Instruments Act,  1881,  the  complainant  filed  the  complaint  petition.  The prosecution  proved  the  charge  against  the  accused  beyond  all reasonable doubt. She prayed for the dismissal of the appeal.

I have considered the submission of the learned Advocate Ms.  Bijoya  Barua  who  appeared  on  behalf  of  complainant- respondent No. 2, perused the evidence, impugned judgment and order passed by the trial Court and the records.

On perusal of the records, it appears that the accused Md. Shah Alam Dhali issued a cheque on 12.07.2014 in favour of the complainant  BRAC  Bank  Limited  for  payment  of  Tk.  1,95,036 (exhibit  3).  The  said  cheque  was  presented  to  the  BRAC  Bank Limited,  Chandpur  Branch  on  22.07.2014  but  the  same  was dishonoured with a remark ‘insufficient funds’ and the bank issued the dishonour slip (exhibit 4). After that, the complainant bank sent a  notice  on  04.08.2014  through  registered  post  with  AD  to  the accused which was proved as exhibit 5. P.W. 1 proved the postal receipt and AD as exhibits 6 and 7.

On perusal of the acknowledgement due, it appears that the appellant  received  the  notice  on  07.08.2014.  Despite  the  notice received by the appellant on 07.08.2014, he did not pay the cheque amount. During the trial, the accused was not present and he did not cross-examine P.W. 1. Therefore, the evidence of P.W. 1 regarding the  issuance  of  the  cheque  by  the  appellant  remained uncontroverted. I am of the view that the appellant issued the cheque (exhibit 3) for payment of Tk. 1,95,036.  

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) of the said Act 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. The cheque was dishonoured and after service of notice in writing under Section  138(1)(b)  of  the  said  Act,  the  accused  did  not  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  all  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  proper  assessment  and evaluation of the evidence legally passed the impugned judgment and order.

In view of the  above  evidence,  findings, observation and proposition, I am of the view that the prosecution proved the charge against the accused beyond all reasonable doubt and the trial Court on  proper  assessment  and  evaluation  of  the  evidence  legally convicted the accused.

On  perusal  of  the  judgment  passed  by  the  trial  Court,  it appears  that  the  trial  Court  awarded  a  sentence  of  rigorous imprisonment against the accused. No provision is made in Section 138  of  the  Negotiable  Instruments  Act,  1881  to  award  rigorous imprisonment. The trial Court is only empowered to award a simple sentence against the accused provided that the prosecution proved the charge against the accused beyond all reasonable doubt.

Considering the gravity of the offence, I am of the view that the ends of justice would be best served if the impugned sentence passed by the trial Court is modified as under;

 The accused Md. Shah Alam Dhali is found guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and he is sentenced to suffer imprisonment for 2(two) months and a fine of Tk. 1,95,036.

The accused Md. Shah Alam Dhali is directed to surrender forthwith and pay the remaining 50% of the cheque amount within 30(thirty) days from the date failing which the trial Court is directed to do the needful. 

In the result, the appeal is disposed of.

Send down the lower Court’s records at once.