In the Supreme Court of Bangladesh

High Court Division

 (Criminal Revisional Jurisdiction)

PRESENT:

MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

CRIMINAL REVISION NO. 1452 OF 2021 Abdur Rahman................…. Convict-petitioner

-Versus-

The State and another .............…///Opposite parties Mr. Ujjal Paul, Advocate

.........For the convict-petitioner Mr. Md. Rezaul Islam with

Mr. Khayrul Bashar, Advocates

         ......For the opposite party No. 2 Mr. Md. Anichur Rahman Khan, DAG with Mrs. Tashrifa Sultana Jali, AAG and

Mr. Md. Emdadul Hoque, AAG

   ........For the state

Heard on: 28.04.2026, 05.05.2026, 14.05.2026, 11.06.2026 and 22.06.2026

Judgment on: The 9th of July, 2026

ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 25.02.2021 passed by the learned Additional District and Sessions Judge,

1st Court, Kishoreganj in Criminal Appeal No. 151 of 2019 dismissing the appeal and thereby affirming the judgment and order dated 18.03.2019 passed by the learned Joint District and Sessions Judge, 2nd Court, Kishoreganj in Sessions Case No. 77 of 2012, arising out of C.R. Case No. 380(1) of 2011 convicting the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer rigorous imprisonment for 01 (one) year and also to pay a fine of Tk. 6,00,000/- (Taka Six lac) should not be set aside and/or such other or further order or orders be passed as to this Court may deem fit and proper.

At the time of issuance of the Rule, this Court granted the convict-petitioner ad-interim bail for a period of 1 (one) year and the said order of bail was not extended thereafter.

For disposal of the Rule, the relevant facts, in brief, are

as follows:

The opposite party No. 2, as complainant, instituted the instant  case  alleging  that,  owing  to  their  long-standing acquaintance, the accused-petitioner borrowed  Tk. 6,00,000/- (Taka  Six  lac)  from  her  on  15.05.2011  to  meet  his  urgent financial  need,  promising  to  repay  the  same  within  the stipulated period. Upon his failure to repay the loan despite repeated demands, the accused, on 20.07.2011, issued Cheque No. CA-0631391 drawn on his account maintained with Pubali

Bank Ltd., Kishoreganj Branch for Tk. 6,00,000/- in discharge of the said liability.

The cheque was presented for encashment on 08.08.2011 but was dishonored due to "Insufficient Funds." Thereafter, on 11.08.2011, the complainant served a statutory demand notice upon the accused through her learned Advocate. Despite receipt of the notice, the  accused  failed  to pay  the  cheque  amount within  the  statutory  period.  Consequently,  the  complainant instituted the instant case under section 138 of the Negotiable Instruments Act, 1881.

The accused-petitioner appeared before the trial Court, obtained bail and upon framing of charge, pleaded not guilty and claimed to be tried. After conclusion of the trial, the learned Joint District and Sessions Judge, 2nd Court, Kishoreganj by the judgment and order dated 18.03.2019 convicted the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentenced him as stated above.

Being aggrieved by the judgment and order of conviction and sentence passed by the trial Court, the petitioner preferred Criminal Appeal No. 151 of 2019 before the learned Sessions Judge,  Kishoreganj.  The  appeal  was  heard  by  the  learned Additional District and Sessions Judge, 1st Court, Kishoreganj, who, by judgment and order dated 25.02.2021, dismissed the appeal and thereby affirmed the conviction and sentence. Being further  aggrieved,  the  petitioner  has  preferred  the  present Criminal Revision before this Court, in which Rule was issued and realization of the fine was stayed pending disposal of the Rule.

Mr. Ujjal Paul, the learned Advocate for the petitioner submits that the petitioner is a petty businessman, borrowed only Tk. 2,00,000/- (Taka two lac) from the complainant on interest and not Tk. 6,00,000/- (Taka six lac) as alleged. He further submits that the petitioner had delivered a blank signed cheque as security for the loan and subsequently repaid the entire  amount.  In  support  of  this  defence,  the  petitioner examined three witnesses (D.Ws.1 to 3). However, both the Courts below failed to properly appreciate the defence evidence and its legal effect and thereby arriving at erroneous findings which have occasioned a miscarriage of justice.

As against this, Mr. Md. Khayrul Bashar, the learned Advocate for the opposite party No. 2 submits that the learned trial Court upon a thorough, meticulous and judicious appraisal of the evidence on record correctly found the accused convict- appellant guilty of the offence charged and lawfully convicted him which does not call for any interference by this Court.

Mr.  Md.  Anichur  Rahman  Khan,  the  learned  Deputy Attorney General concurs with the submissions made by the learned Advocate for the complainant opposite party No 2.

Heard the submissions of the learned Advocates for the respective parties and perused the evidence and materials on record.

To  sustain  a  conviction  under  section  138  of  the Negotiable Instruments Act, 1881, the complainant is required to prove the following foundational facts:

1. The cheque was drawn by the accused for the discharge, in whole or in part, of a legally enforceable debt or other liability. By virtue of sections 118 and 139 of the Act, a statutory presumption arises in favour of the holder that the cheque was issued for consideration and in discharge of  a  debt  or  other  liability,  unless  the  accused successfully rebuts such presumption.
2. The cheque was drawn by the accused on an account maintained  by  him,  and  it  bears his  signature or  was otherwise issued by him.
3. The cheque was presented to the bank within its period of validity, or within such period as prescribed by law at the relevant time.
4. The  cheque  was  returned  unpaid  by  the  bank  due  to insufficiency of funds, because the amount exceeded the arrangement made with the bank, or for any other reason attracting the provisions of section 138 of the Act.

5. Within the statutory period from the date of receipt of information  regarding the dishonor of  the cheque, the payee  or  the  holder  in  due  course  issued  a  written demand notice to the drawer demanding payment of the cheque amount.
6.   The complainant must prove that the demand notice was duly dispatched to the correct address of the accused. Actual receipt of the notice is not invariably necessary if the  complainant  establishes  that  it  was  properly addressed, prepaid, and duly dispatched, thereby giving rise  to  a  presumption  of  due  service.  However,  such presumption is rebuttable, particularly where it is shown that the notice was deliberately sent to an incorrect or outdated  address  despite  the  complainant  having knowledge of the accused's correct address.
7. The  accused  failed  to  make  payment  of  the  cheque amount  within  the  statutory  period  after  receipt,  or deemed receipt, of the demand notice.
8. The complaint was instituted within the period prescribed by law after the cause of action accrued, namely, upon the expiry of the statutory period allowed for payment following the service or deemed service of the demand notice.

If  any  one  of  the  aforesaid  essential  ingredients  is  not established, the prosecution under section 138 of the Negotiable Instruments Act, 1881 must fail. Conversely, once the complainant proves the foundational facts giving rise to the statutory  presumptions  under  sections  118  of  the  Act,  the burden shifts to the accused to rebut those presumptions. Such rebuttal is required to be established only on the touchstone of the preponderance of probabilities and not by proof beyond reasonable doubt.

On a careful scrutiny of the evidence on record it appears that  the  complainant  failed  to  prove  one  of  the  essential ingredients of an offence under section 138 of the Negotiable Instruments Act, namely, that the cheque in question was issued by the accused in discharge, wholly or in part, of a legally enforceable debt or liability. In her examination-in-chief, P.W.1 merely stated that the accused issued the cheque, that it was dishonored, and that a legal notice was served. Significantly, she did not depose as to the circumstances under which the cheque  was  issued  or  that  it  represented  repayment  of  any legally enforceable debt or liability.

Although  the  complaint  alleges  that  the  accused borrowed  Tk.  6,00,000/-  from  her,  no  written  agreement, receipt,  promissory  note  or  any  other  contemporaneous document  was  produced  in  support  of  the  alleged  loan transaction. Admittedly, the accused was neither a relative nor a person  having  any  special  fiduciary  relationship  with  the complainant. In the absence of any documentary evidence or

convincing explanation regarding the alleged advancement of such  a  substantial  amount,  the  prosecution  version  becomes inherently doubtful.

On the other hand, the defence examined three witnesses (D.W.1 to D.W.3), whose evidence consistently indicates that the complainant was engaged in advancing money on interest; that the accused had borrowed a much smaller amount; that a signed blank cheque had been delivered as security at the time of obtaining the loan; and that the accused had already repaid the  entire  amount  together  with  the  agreed  interest. Significantly, D.W.1 and D.W.3 were not cross-examined at all, while  the  cross-examination  of  D.W.2  did  not  discredit  his testimony on any  material aspect. Their evidence, therefore, substantially remained unchallenged.

It  is  a  settled  principle  of  criminal  jurisprudence  that where defence evidence remains uncontroverted and is capable of  creating  a  probable  defence,  the  statutory  presumptions under sections 118 of the Negotiable Instruments Act stands rebutted  on  the  touchstone  of  the  preponderance  of probabilities.  Once  such  rebuttal  is  established,  the  burden shifts  back  to  the  complainant  to  prove  the  existence  of  a legally  enforceable  debt  beyond  reasonable  doubt.  In  the present case, the complainant failed to discharge that burden.

Furthermore, although P.W.1 denied the suggestion that she was carrying on the business of money-lending on interest, she  admitted  in  cross-examination  that  she  had  instituted several cheque dishonor cases against different persons. While such admission, by itself, does not conclusively establish that she  was  an  unlicensed  money-lender,  it  nevertheless  lends support to the defence case and assumes significance when read together  with  the  unchallenged  testimony  of  the  defence witnesses.

In the facts and circumstances of the case, this Court is of the view that the defence has successfully rebutted the statutory presumptions  arising  under  sections  118  of  the  Negotiable Instruments Act. The prosecution has failed to establish beyond reasonable doubt that the cheque was issued in discharge of a legally  enforceable  debt  or  liability.  Both  the  Courts  below failed to properly appreciate the evidence on record and the legal  effect  of  the  unchallenged  defence  evidence,  thereby arriving at findings which cannot be sustained in law.

As a result, the Rule is made absolute.

 Accordingly, the judgment and order dated 25.02.2021 passed by the Additional District and Sessions Judge, 1st Court

Kishorgonj in Criminal Appeal No. 151 of 2019 dismissing the appeal  and  thereby  affirming  the  judgment  and  order  of conviction and sentence dated 18.03.2019 passed by the trial Court is hereby set aside.

Consequently,  the  Judgment  and  order  of  conviction dated  18.03.2019  passed  by  the  learned  Joint  District  and Sessions Judge, 2nd Court, Kishorganj in Sessions Case No. 77 of  2012,  arising  out  of  C.R.  Case  No.  380  (1)  of  2011 convicting the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer rigorous imprisonment  for  01  (one)  year  and  to  pay  a  fine  of  Tk. 6,00,000/- (Taka six lac) are hereby set aside.

Accordingly, the trial Court is directed to refund to the convict-appellant the sum of Tk. 3,00,000/- (Taka three lac) which was deposited by him towards part satisfaction of the cheque amount.

Send down the Lower Court Records (LCR).

Let  a  copy  of  this judgment  be  communicated to  the Court below forthwith.