IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 2635 of 2021

Sana Ullah @ Salauddin

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

                 -VERSUS- The State and another

.…... Opposite Parties

Mr. Md. Kamal Hossain.

…… For the Petitioner Mr. Mohammad Taifoor Kabir, DAG with Mr. Md. Lokman Hossain, AAG

Mr. Md. Hatem Ali, AAG

…… For the Opposite Party No. 2 Mr. Md. Mostafizur Rahman, Advocate

… For the Complainant-Opposite Party No. 1

Heard & Judgment on: 14th November, 2023

Rule was issued calling upon the opposite parties to show cause as to why the judgment and order of conviction and sentence dated 11.03.2021 passed by the Sessions Judge, Khagrachari in Criminal Appeal No. 33 of 2020 dismissing the appeal and thereby upholding the judgment and order of conviction and sentence dated 09.02.2020 passed by the Joint Sessions Judge, Khagrachari in Sessions Case No. 52 of 2018 arising out of C.R. Case No. 67 of 2018 convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and

sentencing him to suffer rigorous imprisonment for a period of 01 year and also to pay a fine of Taka 10,00,000/- 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. Millat Hossainis the Complainant Opposite party No. 1.

Mr. Md. Kamal Hossain, the learned Advocate appearing for the convict-appellant, submits that the appellant 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- respondent 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.

The learned Advocate appearing for the Complainant- Opposite party No. 1 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. 1 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 17.09.2017 for repayment of Tk. 14,00,000/- which he took from the complainant. The value of the cheque is Tk. 14,00,000/-. It was dishonoured by the bank concerned on 17.01.2018. The complainant sent the statutory legal notice to the convict-petitioner on 22.10.2018 and received the same on 24.01.2018. The value of the cheque was not paid to the complainant. Hence, the case. 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.14,00,000/-. The convict-petitioner was fined Tk. 10,00,000/- 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 6 (six) months imprisonment is set aside. The sentence of fine of Tk. 10,00,000/- is upheld. The convict-petitioner has already deposited Tk. 5,00,000/- in the Court below before filing the appeal. The Court concerned is directed to give the said deposit to the complainant-opposite party No.1 forthwith. The convict- petitioner is directed to pay the remaining portion of fine of Tk. 5,00,000/- to the Complainant-opposite party No. 1 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 2 (two) months. 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:)