IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 1669 of 2022

Shariful Molla

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

The State and another

.…... Opposite Parties

Mr. Mohammad Anawrul Islam, Adv.

…… 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 Ms. Lilia Aktar, Advocate

… For the Complainant-Opposite Party no. 2

Heard & Judgment on: 31.07.2024

Rule  was  issued  calling  upon  the  opposite  parties  to  show cause as to why the judgment and order of conviction and sentence dated 17.04.2022 passed by the learned Additional Sessions Judge, Gopalgonj  in  Criminal  Appeal  No.99  of  2018  in  respect  of  the affirmance of fine imposing by judgment and order of conviction and sentence  dated  13.02.2018  passed  by  the  learned  Court  of  Joint Sessions Judge, 2nd Court, Gopalgonj in Sessions case No. 94 of 2015 arising out of C.R. Case No. 67 of2016 (Kotalipara) convicting the petitioner under section 138 of the Negotiable Instrument Act and sentencing  him  to  suffer  rigorous  imprisonment  for  a  period  of

01(one) year and to pay a fine of Taka 9,00,000/-(Nine lacs) and passed direction upon the complainant to withdraw taka 4,50,000/- (four lacs fifty thousand) which was deposited by the petitioner at the time of filing the appeal and directed the petitioner to deposit rest 50%  fine  of  taka  4,50000/-  (Four  lacs  fity  thousand)  within 15(fifteen) days from the date of receipt the record by the trial 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. Kawsir Khandaker is the Complainant Opposite party No. 2.

Mr.  Mohammad  Anawrul  Islam,  the  learned  Advocate appearing  for  the  convict-appellant-petitioner,  submits  that  the appellant-petitioner is in no way involved in the alleged offence and he  has  falsely  been  implicated  in  this  case  and  the  impugned judgment and order of conviction has been passed only on the basis of P.W-1 of the complainant-opposite party No. 2 and not by any independent/neutral witness and as such the same is liable to be set aside for the ends of justice.

Ms.  Lilia  Aktar,  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 Advocates for the convict-appellant- petitioner as well as 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 11.01.2015 for repayment of Tk. 9,00,000/- which he  took  from  the  complainant.  The  value  of  the  cheque  is  Tk. 9,00,000/-. It was dishonoured by the bank concerned on 22.01.2015. The  complainant  sent  the  statutory  legal  notice  to  the  convict- petitioner on 03.02.2015 and received the same on 05.02.2015. The value of the cheque was not paid to the complainant. The case was filed on 16.03.2015. 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.  9,00,000/-.  The  convict- petitioner  was  fined  Tk.  9,00,000/-  which  does  not  require  any 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 1 (one) year imprisonment is set aside. The sentence of fine of Tk. 9,00,000/- which is equivalent to the value of the dishonoured cheque, is upheld. The convict-petitioner has already deposited Tk. 4,50,000/- 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. 4,50,000/- to the Complainant-opposite party No. 2 either in full or by installment within 4 (four) months from the date of receipt of this order, in default he will suffer simple imprisonment for 1 (one) month. 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:)