IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 1012 of 2023

Md. Abdul Awal

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

The State and another

.…... Opposite Parties Mr. M. Ashraf Ali, Adv. with

Mr. Md. Shakhawat H Khan, 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 Mr. Md. Mahbubur Rahman Kishore, Adv. with Mr. Md. Zakir Hossain, Advocate

… For the Complainant-Opposite Party no. 2

Heard on: 07.03.2024

And

Judgment on: 14th March, 2024

Rule  was  issued  calling  upon  the  opposite  parties  to  show cause as to why the judgment and order of conviction and sentence dated 08.02.2023 passed by the learned Additional Sessions Judge, 1st Court, Habiganj in Criminal Appeal no. 130 of 2020 dismissing the appeal  and  upholding  the  judgment  and  order  dated  12.08.2020 passed by the learned Joint Sessions Judge, 2nd Court. Habiganj in Sessions Case No. 643 of 2015 arising out of C.R Case No. 86 of 2015 convicting the petitioner under section 138 of the Negotiable Instruments  Act,  1881  sentencing  him  to  suffer  rigorous

imprisonment  for  a  period  of  1(one)  year  with  a  fine  of  Taka 85,00,000/- (eighty five lacs) in default to suffer simple imprisonment for 3(three) months more should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Mr. Taj Uddin is the Complainant Opposite party No. 2.

Mr. M. Ashraf Ali, the learned Advocate appearing for the convict-petitioner, submits that the petitoner 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.

Mr. Md. Mahbubur Rahman Kishore, 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 petitioner as well as the complainant-opposite party No. 2. I have perused the revisional application, grounds taken thereon, supplementary affidavit as filed by the petitioner as well as necessary papers and documents annexed herewith.

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  05.01.2015  for  repayment  of  Tk.  85,00,000/- which he took from the complainant. The value of the cheque is Tk. 85,00,000/-.  It  was  dishonoured  by  the  bank  concerned  on 15.01.2015. The complainant sent the statutory legal notice to the convict-petitioner on 20.01.2015. The value of the cheque was not paid to the complainant. The case was filed on 26.02.2015. 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. 85,00,000/-. The convict- petitioner  was  fined  Tk.  85,00,000/-  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  3 (three) months imprisonment is set aside. The sentence of fine of Tk. 85,00,000/-,  which  is  equivalent  to  the  value  of  the  dishonoured cheque, is upheld. The convict-petitioner has already deposited Tk. 42,50,000/- 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. 42,50,000/- to The Complainant-opposite party No. 2 either in full or by installment within 6 (six) 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:)