IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 664 of 2021

Md. Mozibor Rahman (Jibon)

........Convict-Appellant-Petitioner                  -VERSUS-

The State and another

.…... Opposite Parties

None appears

…… For the Petitioner Mr. Mohammad Taifoor Kabir, DAG with

Mr. Md. Lokman Hossain, AAG

Mr. Md. Hatem Ali, AAG

…… For the Opposite Party No. 1 Mr. Prasanta Kumar Nath, Advocate

… For the Complainant-Opposite Party no. 2

Heard & Judgment on: 01.08.2024

Rule  was  issued  calling  upon  the  opposite  parties  to  show cause as to why the judgment and order of conviction and sentence dated 15.11.2020 passed by the Additional Sessions Judge, 2nd Court, Naogaon in Criminal Appeal No. 20 of 2018 dismissing the appeal and thereby upholding the judgment and order of conviction dated 12.11.2017 passed by the Joint Sessions Judge, 3rd Court, Naogaon in Sessions Case No. 564 of 2016 arising out of C.R. Case No. 213 of 2015(Sapahar) convicting  the petitioner under Section  138 of the Negotiable  Instruments  Act,  1881, but modifying the  sentence of imprisonment by reducing it to simple imprisonment for a period of

06 months from 01 year and also reducing the fine to Taka 2,01,000/- from Taka 3,00,000/-should not be set aside and/or such other or further order or orders passed as to the Court may  seem fit and proper.

Mr. Md. Khabir Uddin is the Complainant Opposite party No. 2.

None appeared  on behalf  of  the convict-appellant-petitioner when the matter is called on for hearing.

Mr. Prashanta Kumar Nath, the learned Advocate appearing for the  Complainant-Opposite  party  No.  2  submits  that  the  charge brought  against  the  convict-petitioner  under  Section  138  of  the Negotiable Instruments Act, 1881 (in short, ‘the Act, 1881’) has been proved beyond reasonable doubt and therefore, the rule is liable to be discharged.

I  have  heard  the  learned  Advocate  for  the  complainant- Opposite party No. 2 and perused the materials on record.

It appears from the petition of complaint, the deposition of PW1 (complainant) and the documentary evidences that the convict- petitioner issued the cheque in question in favour of the Complainant- Opposite party on 30.09.2015 for repayment of Tk. 2,00,000/- which he  took  from  the  complainant.  The  value  of  the  cheque  is  Tk. 2,00,000/-. It was dishonoured by the bank concerned on 04.11.2015. The  complainant  sent  the  statutory  legal  notice  to  the  convict- petitioner on 08.11.2015 and received the same on 11.11.2015. The value of the cheque was not paid to the complainant. The case was filed on 14.12.2015. P.W.1 proved the prosecution case.

I have no hesitation to hold that the complainant-opposite party has proved compliance of the procedure 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 of the Act, 1881. The complainant also proved consideration against which the cheque was drawn and he is the holder of the cheque in due course. Hence, in my view, the impugned judgment and order of conviction does not suffer from any illegality or infirmity. The trial Court correctly found that the convict- petitioner guilty of the charge.

Section  138  of  the  Act,  1881  provides  that  the  offence  of dishonour  of  cheque  is  punishable  with  imprisonment  for  a  term which may extend to 1 (one) year, or with fine which may extend to thrice the amount of the cheque, or with both. Sub-section (2) of Section 138 provides, “Where any fine is realised under sub-section (1), any amount up to the face value of the cheque as far as is covered by the fine realised shall be paid to the holder”. Thus, the criminal proceeding under Section 138 serves two purposes: firstly, to punish the offender and secondly, to recover the value of the cheque. The object of adding sub-section (2) to Section 138 is to alleviate the grievance of the complainant. In the instant case, the value  of  the  dishonoured  cheque  is  Tk.  2,00,000/-  whereas  the convict-petitioner  was  fined  Tk.  2,01,000/-  which  requires interference.

Now, I turn to the sentence of imprisonment. There can be no dispute in so far as the sentence of imprisonment is concerned that it should commensurate with the gravity of the crime. Court has to deal with  the  offenders  by  imposing  proper  sentence  by  taking  into consideration the facts and circumstances of each case. It is not only the rights of the offenders which are required to be looked into at the time of the imposition of sentence, but also of the victims of the crime and society at large, also by considering the object sought to be achieved  by  the  particular  legislation.  Considering  the  facts  and circumstances of the case and the object of the law, I am of the view that the sentence of imprisonment would be a harsh sentence having no  penal  objective  to  be  achieved.  Hence,  the  sentence  of imprisonment is set aside.

I note that the trial court has not passed any default order i.e. imprisonment in default of payment of the fine. When an offender is sentenced to fine only, the Court has the power to make a default order under Section 388 of the Code of Criminal Procedure (in short the  ‘Cr.P.C.’).  Section  423(1)(d)  of  the  Cr.P.C.  empowers  the Appellate Court to pass any consequential or incidental order that may be ‘just and proper’. Since, this Court has already set aside the sentence of imprisonment, it would be just and proper to pass a default order.

In view of the foregoing discussions, the order of the Court is

as follows:

The conviction of the petitioner under Section 138 of the Act, 1881 is upheld, but the sentence is modified. The sentence of 6 (six) months  imprisonment  is  set  aside.  The  sentence  of  fine  of  Tk. 2,01,000/- is modified to Tk. 2,00,000/- which is equivalent to the value of the dishonoured cheque. The convict-petitioner has already deposited Tk. 1,00,000/- in the Court below before filing the appeal. The  Court  concerned  is  directed  to  give  the  said  deposit  to  the complainant-opposite party No.2 forthwith. The convict-petitioner is directed to pay the remaining portion of the value of the dishonoured cheque i.e. Tk. 1,00,000/- to the Complainant-opposite party No. 2 either in full or by installment within 3 (three) months from the date of receipt of this order, in default she will suffer simple imprisonment for  15  (fifteen)  days.  If  the  convict-petitioner  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 realize the fine under the provisions of Section 386 of the Cr. P.C.

In  the  result,  the  rule  is  discharged  with  modification  of sentence and with directions made above. The convict-petitioner is released from the bail bond.

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

(Mamnoon Rahman,J:)