Present:

Mr. Justice Md. Shohrowardi

Criminal Appeal No. 2008 of 2022

Faruque Azam Shobhan

...Appellant

-Versus-

The State and another

...Respondents

Mr. Khandoker Anisur Rahman, Advocate

...For the appellant

Mr. Jamil Ahammad, Advocate

...For the complainant-respondent No. 2 Heard on 06.12.2023, 02.01.2024, 03.01.2024 and 04.03.2024

Judgment delivered on 19.03.2024

This  appeal  under  Section  410  of  the  Code  of  Criminal Procedure,  1898  is  directed  against  the  judgment  and  order  of conviction  and  sentence  dated  21.08.2019  passed  by  Additional Metropolitan  Sessions  Judge,  Court  No.  5,  Dhaka  in  Metropolitan Session Case No. 5925 of 2017 arising out of C.R. Case No. 26 of 2016 convicting the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him thereunder to suffer imprisonment for 2(two)  months  and  a  fine  of  Tk.  19,20,200  (nineteen  lakh  twenty thousand and two hundred).

The  prosecution  case,  in  short,  is  that  the  accused  Faruque Azam Shobhan issued Cheque No. IBQ-3159571 on 08.11.2015 for payment of  Tk. 19,20,200 (nineteen lakh twenty  thousand and two hundred) drawn on his Account No. 20502090100313308 maintained with  Islami  Bank  Ltd,  Shyamoli  Branch,  Dhaka  in  favour  of  the complainant Abu Ahammad Asadullah. The complainant presented the cheque on 10.11.2015 for encashment which was dishonoured on the same date with the remark ‘insufficient funds’. The complainant issued a legal notice on 26.11.2015 through registered post upon the accused

for payment  of  the  cheque  amount but  he  did  not pay  the  cheque amount within time. Consequently, he 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 under Section 138 of the Negotiable Instruments Act, 1881 against the accused and sent the case to the Additional Metropolitan Sessions  Judge,  Court  No.  5,  Dhaka  for  trial  and  the  case  was renumbered as Metro Sessions Case No. 5925 of 2017.

During the trial, charge was framed on 06.07.2017 against the accused under Section 138 of the Negotiable Instruments Act, 1881. At the  time  of  framing  charge  the  accused  was  absconding.  The prosecution examined 1(one) witness to prove the charge against the accused. The defence did not cross-examine P.W. 1 and the trial was held in absentia. 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 Abu Ahammad Asadullah is the complainant. He stated that accused Faruque Azam Shobhan issued a cheque on 08.11.2015 for payment of  Tk. 19,20,200 (nineteen lakh twenty  thousand and two hundred). The said cheque was presented on the same date but it was dishonoured on 10.11.2015. After that, the complainant issued a legal notice  on  26.11.2015  but  he  did  not  pay  the  cheque  amount. Consequently, he filed the case. P.W. 1 proved the complaint petition as exhibit 1 and his signatures on the complaint petition as exhibits 1/1 to 1/5, the disputed cheque as exhibit 2, dishonour slip as exhibit 3, legal  notice  as  exhibit  4,  postal  receipt  as  exhibit  5  and acknowledgement  receipt  as  exhibit  6.  The  defence  did  not  cross- examine P.W. 1.

Learned Advocate Mr. Khandoker Anisur Rahman appearing on behalf  of  the  appellant  submits  that  both  the  appellant  and  the

complainant-respondent No. 2 settled the dispute out of Court and the appellant paid the entire cheque amount to the complainant. He prayed for allowing the appeal. 

Learned Advocate Mr. Jamil Ahammad appearing on behalf of the complainant-respondent No. 2 submits that the accused issued the cheque for payment of Tk. 19,20,200 (nineteen lakh twenty thousand and two hundred) on 08.11.2015 and the same was dishonoured due to insufficient funds and after complying with all the procedures provided in  Section  138  of  the  Negotiable  Instruments  Act,  1881,  the complainant filed the complaint petition and P.W. 1 proved the charge against the accused beyond all reasonable doubt. He admitted that he received the entire cheque amount total Tk. 19,20,200 (nineteen lakh twenty thousand and two hundred).

I have considered the submission of the learned Advocate Mr. Khandoker Anisur Rahman who appeared on behalf of the appellant and the learned Advocate Mr. Jamil Ahammad who appeared on behalf of 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 both the complainant- respondent  and  the  appellant  filed  a  joint  affidavit  on  18.03.2024 stating that the complainant received the entire cheque amount. The Negotiable  Instruments  Act,  1881  is  a  special  law  and  the  offence under  Section  138  of  the  Negotiable  Instruments  Act,  1881  is  not compoundable. After filing a complaint petition under Section 138 of the Negotiable Instruments Act, 1881 the Court shall dispose of the case on merit. There is no scope to settle the dispute out of Court and this Court is not legally empowered to accept the compromise made between the parties.

On perusal of the records, it appears that the accused issued cheque  No.  IBQ-3159571  dated  08.11.2015  in  favour  of  the complainant  for  payment  of  Tk.  19,20,200  (nineteen  lakh  twenty thousand  and  two  hundred).  During  the  trial,  the  accused  was absconding and he did not cross-examine the prosecution witness. The evidence of P.W. 1, as regards the issuance of the cheque (exhibit 2) remained uncontroverted by the defence. By filing the joint application for  compromise  the  accused  also  admitted  that  he  paid  the  entire cheque amount.

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.

Considering 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 trial Court is modified as under; 

The  accused  Faruque  Azam  Shobhan  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. 19,20,200 (nineteen lakh twenty thousand and two hundred).

Since  the  complainant  admitted  that  he  received  the  entire cheque amount, the fine amount is not required to be deposited by the appellant.

In view of the above evidence, observation, findings, reasoning and proposition, the appeal is disposed of with modification of the sentence.

Send down the lower Court’s records at once.