IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

              (CRIMINAL APPELLATE JURISDICTION)

Present:

     Mr. Justice Md. Bashir Ullah

Criminal Appeal No. 6094 of 2018

In the matter of:

An Appeal under Section 410 of the Code of Criminal Procedure

-And-

In the matter of:

Md. Saiful Rahman Mondol @ Bablu

                          ... Appellant -Versus-

The State and another

                                ... Respondents

Mr. Md. Sultan Mahmud, Advocate

                                   ... For the Appellant

Mr. Md. Ziaur Rahman, Advocate

... For the Respondent No. 2

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

         Ms. Farhana Abedin, A.A.G with

Mr. Hemaith Uddin, A.A.G and

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

… For the State

Heard on: 08.07.2026, 09.07.2026 and 13.07.2026

Judgment on: 14.07.2026

This appeal, preferred under Section 410 of the Code of Criminal Procedure, 1898 is directed against the judgment and order dated 08.08.2017 passed by the learned Additional

Sessions Judge, 4th Court, Khulna in Sessions Case No. 320 of 2016 arising out of C.R. Case No. 86(C)(Dighaliya) of 2015  convicting  the  accused  under  Section  138  of  the Negotiable  Instruments  Act,  1881  and  sentencing  him  to suffer simple imprisonment for 03(three) months and to pay a fine of Taka 2,50,000/- (two lac fifty thousand).

The  prosecution  case,  in  short,  is  that  the  accused obtained a loan of Taka 2,50,000/- from the complainant. In discharge of the said debt, the accused issued cheque No. 1903417 on 30.07.2015, drawn on Agrani Bank Limited, Clay Road Corporate Branch, Khulna. The complainant presented the  cheque  to  the  concerned  bank  for  encashment  on 02.08.2015  but  the  same  was  dishonoured  with  the endorsement “insufficient funds”. Thereafter, the complainant served  a  statutory  legal  notice  upon  the  accused  on 10.08.2015 demanding payment.  The  accused received  the legal notice on 25.08.2015 but failed to make the payment within the statutory period. Consequently, the complainant instituted C.R. Case No. 86(C) of 2015 (Dighaliya) before the learned  Judicial  Magistrate,  Khulna  on  18.10.2015.  The learned  Magistrate  took  cognizance  of  the  offence  and transmitted the case record to the Court of learned Sessions Judge,  Khulna.  Subsequently,  the  learned  Sessions  Judge, Khulna transferred the case to the learned Additional Sessions Judge, 4th Court, Khulna which was registered as Sessions Case No.320 of 2016. The charge was framed under Section 138  of  the  Negotiable  Instruments  Act,  1881  against  the accused  on  16.02.2017  to  which,  the  accused  pleaded  not guilty of the offence and claimed to be tried. In course of trial, the prosecution examined 03(three) witnesses to prove the indictment whereas the defence examined none. The accused was thereafter examined under Section 342 of the Code of Criminal Procedure wherein he reiterated his innocence.

Upon conclusion of the trial and hearing of the parties, the  learned  Additional  Sessions  Judge,  4th  Court,  Khulna convicted the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to suffer simple imprisonment for 03(three) months and to pay a fine of Taka 2,50,000/- (two lac fifty thousand) by judgment and order dated 08.08.2017.

Being aggrieved by and dissatisfied with the judgment and order dated 08.08.2017, the appellant preferred the instant Criminal  Appeal  having  deposited  50%  of  the  cheque amounting  to  Taka  1,25,000/-  before  the  Court  below  in compliance  with  the  statutory  pre-requisite  for  filing  an appeal.

Mr.  Md.  Sultan  Mahmud,  the  learned  Advocate appearing on behalf of the appellant submits that the appellant does not dispute the execution or issuance of the cheque by the appellant but owing to financial hardship, he could not make the payment of the cheque amount following receipt of the  notice  sent  by  the  complainant  after  dishonour  of  the cheque.  He  emphasizes  that  the  appellant  has  already deposited  Taka  1,25,000/-  to  the  trial  Court  through  T.R. Chalan.

He prays that the substantive sentence of imprisonment be set aside and the appellant be granted an extension of 06(six) months to clear the remaining dues. He finally prays for the appeal to be allowed.

Per  contra,  Mr.  Md.  Ziaur  Rahman,  the  learned Advocate appearing on behalf of the respondent no. 2 submits that  there  is  no  illegality,  impropriety  or  infirmity  in  the impugned  judgment  and  order.  He  contends  that  the prosecution  successfully  proved  all  the  legal  ingredients required  under  Section  138  of  the  Negotiable  Instruments Act, 1881. The trial Court rightly convicted the accused and sentenced him to suffer imprisonment. Finally, he prays for the dismissal of the appeal.

I  have  considered  the  submissions  of  the  learned Advocates for both parties, perused the evidence, impugned judgment and order passed by the trial Court and the materials on record.

On perusal of the evidence it is found that the accused issued cheque No. 1903417 dated 30.07.2015 in favour of the complainant for Taka 2,50,000/- which was dishonoured.

The  record  shows  that  the  complainant  has  duly complied with the procedures laid down in Section 138 of the Act, 1881 in filing the case. The case was filed within one month of the date on which the cause of action had arisen under  clause  (c)  of  the  proviso  to  Section  138.  The complainant as PW 1 proved consideration against which the cheque was drawn and that it is the holder of the cheque in due course. The Court below righty found the appellant guilty of the charge. Hence, the impugned judgment and order of conviction does not suffer from any illegality, impropriety or infirmity.

However, with regard to the sentence, reliance may be placed upon the decision passed in Aman Ullah Vs. State, reported in 73 DLR (2021) 541, wherein this Court observed that in offences of this nature, the sentence of imprisonment would be a harsh sentence having no penal objective to be achieved. I have no disagreement with the ratio passed in the above-mentioned case.

Considering the facts and circumstances of the case, this Court is of the view that the ends of justice would be best served  if  the  substantive  sentence  of  imprisonment  is modified and set aside.

In view of the foregoing discussions and ratio the order of the Court is as follows:

The conviction of the appellant under Section 138 of the  Negotiable  Instruments  Act,  1881  is  hereby  affirmed. However,  the  sentence  of  04(four)  months  simple imprisonment is set aside. The sentence of fine to the extent

of  Tk.  2,50,000/-  is  upheld.  It  appears  that  the  convict- appellant has already deposited 50% of the cheque amount before the trial Court prior to filing the appeal. The Court concerned is directed to disburse the said deposited money to the  complainant-respondent  no.  2  forthwith.  The  convict- appellant is directed to pay the remaining portion of the value of the dishonoured cheque to the complainant-respondent No. 2 through the trial Court within 04 (four) months from the date of receipt of this order, in default he will suffer simple imprisonment  for  01(one)  month.  If  the  convict-appellant does not pay the remaining portion of the fine as ordered or opts  to  serve  out  the  period  of  imprisonment  in  lieu  of payment of fine, he is not exempted from paying the same. In that event, the Court concerned shall realise the fine under the provisions of Section 386 of the Code of Criminal Procedure.

In the result, the Criminal Appeal is dismissed with modification of sentence and with directions made above. The convict-appellant is released from his bail bond.

Send down the lower Court’s records (LCR) at once. Communicate the judgment and order to the Court concerned forthwith.

(Md. Bashir Ullah, J)

Md. Ariful Islam Khan

Bench Officer