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IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
Present:
Mr. Justice Md. Shohrowardi
Criminal Appeal No. 7291 of 2022 Muhammad Abdul Aziz
...Appellant
-Versus-
The State and another
...Respondents
Mr. Umme Kulsum Begum Rekha, Advocate
...For the Appellant
Mr. Taposh Kumar Dutta, Advocate
...For respondent No. 2
Mr. S.M Golam Mostofa Tara, DAG with Mr A. Mannan, AAG
……………..for the State.
Heard on 04.06.2024
Judgment delivered on 05.06.2024
This appeal under Section 410 of the Code of Criminal Procedure, 1898 is directed against the judgment and order dated 28.01.2019 passed by Additional Sessions Judge, Court No.1, Gazipur in Session Case No. 856 of 2015 arising out of C.R. Case No. 183 of 2015 convicting the appellant under section 138 of the Negotiable Instruments Act, 1881 and sentencing him thereunder to suffer simple imprisonment for 1 (one) year and fine of Tk. 80,00,000(eighty lakhs).
The prosecution case, in short, is that the complainant and others sold 123.75 decimals of land by Power of Attorney No. 6127 of 2014 at a price of Tk. 3,51,26,000. He issued six cheques in favour of the complainant and others. Out of which cheque No. 9968970 dated 15.10.2014 drawn on his Current Account No. 7371 maintained with Islami Bank Limited, Mymensingh Branch for payment of Tk. 40,00,000 was issued in favour of the complainant. He presented the cheque for encashment on 02.02.2015 but the same was dishonoured on the same date with a remark, “insufficient funds”. Thereafter, the complainant issued a legal notice on 05.02.2015 to the accused for payment of the
cheque amount. But he did not pay the money. Consequently, the complainant filed complaint petition on 29.03.2015.
After filing the complaint petition, cognizance was taken against the accused under section 138 of the Negotiable Instruments Act, 1881. After that, the case record was sent to the Additional Sessions Judge, Court No. 1, Gazipur for trial. During trial, the charge was framed under section 138 of the Negotiable Instruments Act, 1881 against the accused which was read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried following law.
The prosecution examined one witness to prove the charge against the accused. After examination of the prosecution witness, the accused was absconding and he was not examined under section 342 of the Code of Criminal Procedure, 1898. After concluding the trial, the trial court by judgment and order dated 28.01.2019 convicted the accused under section 138 of the Negotiable Instruments Act, 1881 and sentenced him to suffer imprisonment for 01 year and fine of Tk. 80,00,000, double the cheque amount, against which the accused filed the instant appeal.
P.W. 1 Md. Tanvir is the complainant. He stated that accused Mohammad Abdul Aziz purchased land from him and issued a cheque on 15.10.2014 for payment of Tk. 40,00,000. He presented the cheque but the same was dishonoured with a remark, “insufficient funds”. After that, he issued a legal notice on 05.02.2015 through the learned Advocate to the accused to pay the cheque amount but he did not pay the money. Consequently, he filed the case. He proved the complaint petition as exhibit-1 and his signature on the complaint petition as exhibit -1/1. He proved the disputed cheque as exhibit-2, the dishonoured slip as exhibit- 3, the legal notice as exhibit-4 and the postal receipt registered with AD as exhibit -5. The defence did not cross-examine P.W.1.
The learned Advocate Md. Fazlur Rahman appearing along with the learned Advocate Ms. Umme Kulsum Rekha on behalf of the appellant submits that both the complainant and the accused settled the dispute between them out of court. He also submits that before filing the appeal the accused paid 50% of the cheque amount in the trial court and after filing the appeal the appellant paid 50% of the cheque amount i.e. Tk. 20,00,000 to the complainant. Therefore, he prayed for allowing the appeal by setting aside the impugned judgment and order passed by the trial court.
The learned Advocate Mr. Taposh Kumar Dutta appearing on behalf of the complainant respondent No. 2 submits that the accused issued the cheque and after complying with all the procedures provided in section 138 of the Negotiable Instruments Act, 1881 filed the complaint petition. Therefore, the accused committed an offence under section 138 of the Negotiable Instruments Act, 1881. However, he conceded that the accused paid Tk. 20,00,000 i.e. 50% of the cheque amount to the complainant and he is willing to withdraw the remaining 50% of the cheque amount deposited in the trial court.
I have considered the submission of the learned Advocate Mr. Md. Fazlur Rahman who appeared on behalf of the accused and the learned Advocate Mr. Taposh Kumar Dutta 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 parties having filed a joint application on 02.06.2024 stated that before filing the appeal the accused paid 50% of the cheque amount in the trial court and after filing the appeal the complainant received Tk.20,00,000 from the accused. The Negotiable Instruments Act, 1881 is a special law and the offence under section 138 of the Negotiable Instruments Act, 1881 is not compoundable. Therefore the appellant is not entitled to get an order of acquittal based on the compromise made between the parties. During trial, the accused was absconding and did not cross-examine P.W. 1. Therefore the evidence of P.W.1 as regards the issuance of the cheque by the accused is admitted by the defence.
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) 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 for insufficient funds. After service of notice in writing, the accused did not pay the cheque amount and thereby he 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 evidence legally passed the impugned judgment and order of conviction.
Considering the evidence, the facts and circumstances of the case and the gravity of the offence, I am of the view that ends of justice would be best served if the sentence passed by the trial court is modified as under;
The accused Muhammad Abdul Aziz 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. 40,00,000 (forty lakhs).
The appeal is disposed of with a modification of the sentence.
The complainant is entitled to get the fine amount imposed by this court.
Since the accused already paid the 50% of the cheque amount to the complainant, he is not required to deposit the fine amount again.
The trial Court is directed to allow the complainant-respondent No. 2 to withdraw 50% of the cheque amount deposited by the accused before filing the appeal.
Send down the lower Court’s records at once.