IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

              (CRIMINAL APPELLATE JURISDICTION)

Present:

       Mr. Justice Md. Bashir Ullah

Criminal Appeal No. 2288 of 2025

In the matter of:

An Appeal under Section 410 of the Code of Criminal Procedure

-And-

In the matter of:

Md. Enamul Haque

               ... Convict-Appellant -Versus-

The State and another

           ...Complainant-Respondents

Mr. Md. Tarik Alam, Advocate

                         ... For the Appellant

Mr. Md. Khayrul Bashar, Advocate

... For the Respondent No. 2

Mr. Md. Shafiquil Islam, D.A.G with

Ms. Farhana Abedin, A.A.G with

Mr. Hemayth Uddin, A.A.G and

Mr. K. M. Saiful Islam, A.A.G

… For the State

Heard on: 17.06.2026 and 21.06.2026  Judgment on: 23.06.2026

This appeal, preferred under Section 410 of the Code of Criminal Procedure, 1898 is directed against the judgment and order dated 03.10.2018 passed by the learned Additional

Sessions Judge, 1st Court, Magura in Sessions Case No. 381 of 2016 arising out of C.R Case No. 245 of 2016 convicting the appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 09(nine) months and to pay a fine equivalent to twice the amount of the dishonoured cheque amounting to Tk. 9,00,000/- (nine lac).

The facts relevant for disposal of the appeal, in short, are that the accused obtained a loan of Taka 9,00,000/- (nine lac) from the complainant. In discharge of his liability, the accused  issued  cheque  No.  2808377  dated  10.07.2016  for Taka 9,00,000/- (nine lac) drawn on Islami Bank Bangladesh Limited  in  favour  of  the  complainant.  The  cheque  was presented but the same was dishonoured on 20.07.2016 due to “insufficiency  of  fund”.  The  complainant  served  statutory legal  notice  upon  the  accused  on  21.07.2016;  however, service  upon  the  accused  could  not  be  effectuated. Consequently,  the  complainant  caused  the  notice  to  be published in 02(two) daily newspapers namely, ‘The Daily Arthanitir  Kagaz’  and  ‘The  Daily  Dhaka  Protidin’  on 05.08.2016. Despite service of the notice, the accused failed to make payment within the stipulated period. Consequently, the complainant instituted C.R. Case No. 245 of 2016 before the  learned  Senior  Judicial  Magistrate,  2nd  Court,  Magura. The learned Magistrate took cognizance of the offence and transmitted the case to the Court of learned Sessions Judge, Magura. The learned Sessions Judge, Magura transferred the case to the learned Additional Sessions Judge, Magura where it was registered as Sessions Case No. 381 of 2016. Charge was framed on 30.05.2017 against the accused under Section 138 of the Negotiable Instruments Act, 1881. The accused pleaded not guilty and claimed to be tried when the charge was read out and explained to him. In course of trial, the prosecution  examined  01(one)  witness  to  prove  the indictment. The accused was examined under Section 342 of the  Code  of  Criminal  Procedure  and  he  repeated  his innocence.

Upon conclusion of the trial and hearing the parties, the learned  Additional  Sessions  Judge,  Magura  convicted  the accused under Section 138 of the Negotiable Instruments Act, 1881  (the  Act,  1881)  and  sentenced  him  to  suffer  simple imprisonment for a period of 09(nine) months and to pay a fine twice of cheque amount of Tk. 9,00,000/- (nine lac) by judgment and order dated 03.10.2018.

Being aggrieved by and dissatisfied with judgment and order dated 03.10.2018, the convict-appellant preferred this instant  Criminal  Appeal  before  this  Court  whereupon  this Court enlarged the appellant on bail till disposal of the appeal.

Mr. Md. Tarik Alam, the learned Advocate appearing on behalf of the appellant by filing an application for the disposal of the appeal on the basis of a compromise deed dated  03.03.2026  submits  that  the  appellant  had  already deposited  Taka  4,50,000/-  before  filing  the  appeal  on 27.11.2024  through  challan  and  during  pendency  of  the appeal, he paid directly the remaining balance amount to the complainant  on  03.03.2026  and  both  parties  amicably resolved  their  disputes.  Accordingly,  he  prays  for  setting aside the impugned judgment and order of conviction and sentence.

Per  contra,  Mr.  Md.  Khayrul  Bashar,  the  learned Advocate appearing on behalf of respondent No. 2 confirms that the complainant had received the remaining balance of the dishonoured cheque and executed the deed of compromise voluntarily  and  he  has  no  objection  if  the  appellant  is acquitted by setting aside the sentence of imprisonment.

I  have  heard  the  respective  parties,  perused  the judgment and order, application for disposal of the appeal on the  basis  of  compromise  agreement  and  the  evidence  on record. 

When the matter has been taken for hearing both parties appeared  in  person  before  this  Court.  They  were  duly identified  by  their  respective  learned  Advocates.  They voluntarily  admitted  that  the  deed  of  compromise  was executed  without  any  coercion  and  undue  influence. Respondent No. 2, Md. Mafizur Rahman acknowledged that he has received Taka 4,50,000/- (four lac fifty thousand) in cash, the balance amount of the cheque from the accused- appellant and he has no grievance against the appellant.

Although  the  offence  under  Section  138  of  the Negotiable Instruments Act is not compoundable, the parties have jointly prayed for recording the compromise and for disposal of the appeal in terms of the compromise by setting aside  the  judgment  and  order  of  conviction  and  sentence passed against the appellant. In this regard, reliance may be placed  on  the  decisions  passed  in  the  cases  of  Subash Chandra Sarker Vs. The State and another reported in 26 BLT (AD) 28 and Haroon-or-Rashid Vs. The State, reported in 76 DLR (2024) 23.

The record demonstrates that the accused-appellant has already deposited Taka 4,50,000/- (four lac fifty thousand) with the trial Court prior to filing this appeal and the rest amount  of  the  cheque  has  been  directly  received  by  the complainant.

Considering the submissions advanced by the learned Advocates  for  both  the  parties  and  the  facts  and circumstances of the case and the deed of compromise, this Court is inclined to allow the application for disposal of the appeal  on  the  basis  of  compromise  agreement  dated 03.03.2026.

Accordingly, the application for disposal of the appeal on the basis of compromise agreement executed between the parties is allowed.

In view of the foregoing discussions, together with the decision  and  the  ratio  laid  down  in  the  above-mentioned reported case, the appeal is disposed of with the following order:

The conviction of the appellant under Section 138 of the Act, 1881 is upheld, however, the sentence of 09(nine) months simple imprisonment is set aside. The sentence of fine equivalent to twice the amount of the cheque imposed by the Court is reduced to the principal amount of the dishonoured cheque that is Taka 9,00,000/-(nine lac). It appears that the convict-appellant has already deposited Taka 4,50,000/- (four lac fifty thousand) before the trial Court prior to filing the appeal. The remaining balance of the cheque amount has been directly received by the complainant, as confirmed by him in person before this Court. Therefore, the trial Court is directed to disburse the deposited sum of Taka 4,50,000/-(four lac fifty thousand)  to  the  complainant-respondent  No.  2  forthwith upon proper identification.

In the result, the Criminal Appeal is disposed of with modification  of  sentence  of  imprisonment  and  fine  with

directions as made above. The convict-appellant is released from his bail bond.

Let  a  copy  of  this  judgment  along  with  the  lower Court’s  records  (LCR)  be  communicated  to  the  Court concerned forthwith.

(Md. Bashir Ullah, J)

Md. Sabuj Akan

Assistant Bench Officer