1
Present:
Mr. Justice Md. Shohrowardi
Criminal Revision No. 217 of 2021
Md. Abdul Hai
...Convict-petitioner
-Versus-
The State and another
...Opposite parties
No one appears.
...For the convict-petitioner
Mr. Md. Zishan Mahmud, Advocate
...For the complainant-opposite party No. 2 Heard on 12.05.2024 and 14.05.2024
Judgment delivered on 21.05.2024
On an application filed under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898 Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 04.01.2021 passed by Additional Sessions Judge. Court No. 3, Cumilla in Criminal Appeal No. 517 of 2017 affirming the judgment and order of conviction and sentence dated 20.04.2017 reducing the sentence to 3(three) months in place of 01(one) year simple imprisonment and a fine of Tk. 2,50,000(two lakh fifty thousand) passed by the Joint Sessions Judge, Court No. 2, Cumilla in Session Trial Case No. 24 of 2016 arising out of C.R. Case No. 844 of 2015 (Kotwali) convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 should not be set aside and/or such other order passed as this Court may deem fit and proper.
The prosecution case, in short, is that on 04.06.2015 the accused Md. Abdul Hai issued Cheque No. SB 2430558 drawn on his Account No. 00121000557890029 maintained with United Commercial Bank Ltd for payment of Tk. 2,50,000 in favour of the complainant. The complainant presented the cheque on 07.06.2015 for encashment but the same was dishonoured with a remark ‘insufficient funds’. After that, he sent a legal notice on 18.06.2015 to the accused for payment of
the cheque amount. Although the notice was served upon the accused, he did not pay the cheque amount. Consequently, on 09.08.2015 the complainant filed the case.
After 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 against the accused under Section 138 of the Negotiable Instruments Act, 1881. The case record was sent to the Sessions Judge, Cumilla for trial and the case was registered as Sessions Trial Case No.
24 of 2016. The Sessions Judge, Cumilla sent the case to the Joint Sessions Judge, Court No. 2, Cumilla for disposal.
On 27.06.2016, the charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried following the law. The complainant examined 1(one) witness to prove the charge. The defence cross- examined P.W. 1.
After concluding the trial, the trial Court by judgment and order dated 20.04.2017 convicted the accused Md. Abdul Hai under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him thereunder to suffer imprisonment for 1(one) year and fine of Tk. 2,50,000, in default, to suffer imprisonment for 3(three) months against which the accused filed Criminal Appeal No. 517 of 2017 before the Sessions Judge, Cumilla who was pleased to transfer the same to the Additional Sessions Judge, Court No. 3, Cumilla. After hearing the appeal, the Additional Sessions Judge, Court No. 3, Cumilla by impugned judgment and order dated 04.01.2021 affirmed the judgment and order of conviction passed by the trial Court reducing the sentence to suffer imprisonment for 3(three) months and fine of Tk. 2,50,000.
P.W. 1 Md. Shahinur Islam stated that the accused issued cheque No. SB 2430558 on 04.06.2015 against the loan for payment of Tk. 2,50,000 drawn on his Account No. 0012000557890029
maintained with United Commercial Bank Ltd. The cheque was presented on 07.06.2015 for encashment but the same was dishonoured for ‘insufficient funds’. After that, the complainant issued a legal notice on 18.06.2015 for payment of the cheque amount but the accused did not pay the cheque amount. Consequently, on 09.08.2015 the complainant filed the case. He proved the complaint petition as exhibit 1 and his signature as exhibit 1/1. He proved the cheque as exhibit 2, dishonour slip as exhibit 3, legal notice as exhibit 4, postal receipt as exhibit 5 and Power of Attorney as exhibit 6. During cross- examination, he stated that the signatures on the legal notice dated 08.03.2015 and 18.06.2015 are identical. On 08.03.2015 there was total dues of Tk. 1,25,512 for which notice was sent for payment of the said amount. The cheque was dishonoured through Pubali Bank Ltd. Abdul Hye received the legal notice. He took the loan on 12.05.2014. The accused took loan of Tk. 3,00,000 and issued cheque for payment of Tk. 2,50,000. He denied that the accused did not issue the cheque for payment of Tk. 2,50,000.
No one appears on behalf of the convict-petitioner.
Learned Advocate Mr. Md. Zishan Mahmud appearing on behalf of the complainant-opposite party No. 2 submits that the convict-petitioner and the Bank settled the dispute out of Court and in the meantime, the complainant received Tk. 1,25,000 and the convict- petitioner also deposited Tk. 1,25,000 before filing the appeal. He further submits that the complainant is willing to withdraw 50% of the cheque amount and the Bank has no objection if the Court make the Rule absolute.
I have considered the submission of the learned Advocate Mr. Md. Zishan Mahmud who appeared on behalf of the opposite party No. 2, perused the evidence, the impugned judgments and orders passed by the Courts below and the records.
On perusal of the records, it appears that the evidence of P.W. 1 as regards the issuance of the cheque in favour of the complainant
remains uncontroverted. The Negotiable Instruments Act, 1881 is a special law and the offence under Section 138 of the Negotiable Instruments Act, 1881 is not compoundable.
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 convict- petitioner failed to rebut the presumption under Section 118(a) of the said Act by cross-examining P.W. 1. Therefore I am of the view that the convict-petitioner Md. Abdul Hai issued the cheque (exhibit 2) in favour of the payee-complainant for consideration. After making a demand in writing under Section 138(1)(b) of the said Act, he did not pay the cheque amount. There is no denial of the fact that notice under Section 138(1)(b) of the said Act was not served upon the accused. In the meantime, the accused paid the entire cheque amount. Thereby he 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 convict-petitioner beyond all reasonable doubt and the Courts below on proper assessment and evaluation of evidence legally passed the impugned judgments and orders.
Considering the facts and circumstances of the case and the gravity of the offence, I am of the view that the ends of justice would be best served if the sentence passed by the Courts below is modified as under;
The convict-petitioner 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. 2,50,000.
In the result, the Rule is disposed of with modification of
sentence.
The complainant is entitled to get back 50% of the cheque amount deposited by the convict-petitioner before filing the appeal.
Since the complainant admitted that he received Tk. 1,25,000 i.e 50% of the cheque amount from the complainant, the convict-petitioner is not required to deposit the 50% of the cheque amount again.
The trial Court is directed to allow the complainant to withdraw 50% of the cheque amount deposited by the convict-petitioner Md. Abdul Hai before filing the appeal.
Send down the lower Court’s records at once.