1
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.