IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

              (CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Bashir Ullah

Criminal Revision No. 2024 of 2023

In the matter of:

An application under section 439 read with

435 of the Code of Criminal Procedure

-And-

In the matter of:

Md. Alauddin

 ... Convict-Appellant-Petitioner             -Versus-

The State and another

             ...Complainant-Respondent-Opposite Parties

Mr. Md. Saiful Alam, Advocate

                      ... For the Convict- Petitioner

Mr. Deb Dulal Baral, Advocate

... For the Complainant- opposite party No. 2

Mr. Md. Shafiquil Islam, D.A.G with

         Ms. Farhana Abedin, A.A.G with

Mr. Hemayth Uddin, A.A.G and

Mr. K. M. Saiful Islam, A.A.G

… For the State

Heard on: 14.07.2026, 15.07.2026 and 16.07.2026

Judgment on: 22.07.2026

This Rule was issued at the instance of the petitioner calling upon the opposite parties to show cause as to why the

judgment and order dated 14.12.2022 passed by the learned Druto Bichar Tribunal and Special Sessions Judge, Barishal in Criminal Appeal No. 44 of 2022 dismissing the appeal and affirming the judgment and order of conviction and sentence dated 18.01.2022 passed by the learned Joint Sessions Judge, 3rd Court, Barishal in Sessions Case No. 374 of 2021 arising out of C.R Case No. 199 of 2020 (Muladi) convicting the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for 06(six) months and to pay a fine of Tk. 5,00,000/- (five lac) should not be set aside and/or such other or further order or orders be passed as to this court may seem fit and proper.

The facts, relevant for disposal of the Rule, in brief, are that, the accused obtained a loan of Taka 5,00,000/-(five lac) from the complainant for carrying on a business of cattle. In discharge  of  the  said  debt,  he  issued  cheque  No.  SBLR 7485640 on 02.11.2020 for Taka 5,00,000/-(five lac) drawn on  Rupali  Bank  Limited,  Bazar  Road  Branch,  Barishal  in favour  of  the  complainant.  The  complainant  presented  the cheque for encashment to the concerned bank on 02.11.2020 but it was dishonoured with the endorsement “insufficiency of funds”. Thereafter, she served statutory legal notice upon the accused on 10.11.2020 which was received by the accused but the petitioner failed to make payment within the statutory period. Consequently, the complainant instituted C.R. Case No. 199 of 2020(Muladi) before the learned Senior Judicial Magistrate, Cognizance Court, Barishal on 20.12.2020. The learned Magistrate took cognizance of the offence and sent the case record to the Court of Sessions Judge, Barishal. The learned Sessions Judge, Barishal transferred the case to the learned  Joint  Sessions  Judge,  3rd  Court,  Barishal  and  was registered as Sessions Case No. 374 of 2021. Charge was framed  against  the  accused  under  Section  138  of  the Negotiable Instruments Act, 1881on 14.10.2021. The accused remained absconding at the time of framing of charge.

In course of trial, prosecution examined 01(one) witness while the defence examined 03(three) witnesses to prove their respective case.

Upon conclusion of the trial, the learned Joint Sessions Judge,  3rd Court,  Barishal  convicted  the  petitioner  under Section  138  of  the  Negotiable  Instruments  Act,  1881  and sentenced  him  to  suffer  simple  imprisonment  for  06  (six)

months and fine of Taka 5,00,000/- by judgment and order dated 18.01.2022.

Challenging the conviction and sentence the petitioner filed  Criminal  Appeal  No.  44  of  2022  before  the  learned Sessions Judge, Barishal having deposited Taka 2,50,000/- being  50%  of  the  cheque  amount  and  the  complainant subsequently received the amount. Thereafter, the appeal was transferred to the learned Druto Bichar Tribunal and Special Sessions  Judge,  Barishal  who  upon  hearing  the  parties dismissed the same by judgment and order dated 14.12.2022 affirming the judgment and order of conviction and sentence.

Being aggrieved by and dissatisfied with judgment and order dated 14.12.2022, the petitioner preferred this instant Criminal  Revision  before  this  Court  and  obtained  Rule. Pending the Rule, this Court enlarged the petitioner on bail on

05.06.2023.

Mr. Md. Saiful Alam, the learned Advocate appearing on behalf of the petitioner submits that both the Courts below failed to apply their judicial minds and committed error of law  in  passing  the  impugned  judgments  and  orders  of

conviction  and  sentence  and  the  prosecution  has  failed  to prove her case beyond reasonable doubt against the petitioner.

He  further  submits  that  the  petitioner  had  already deposited 50% of the cheque amount before filing the appeal and  had  earlier  paid  Taka  3,12,000/-  to  the  complainant. Therefore,  according  to  the  learned  Advocate,  there  is  no outstanding  due  and  as  such  the  petitioner  deserves  an acquittal.

He finally prays for making the Rule absolute.

Per contra, Mr. Deb Dulal Baral, the learned Advocate appearing on behalf of the opposite party no. 2 submits that, there is no illegality, impropriety or infirmity in the impugned judgments and orders. The Courts below rightly convicted and sentenced the petitioner and as such the Rule is liable to be discharged.

I have heard the learned Advocates for the respective parties, perused the revisional application and the materials on record.

It appears from the petition of complaint, the deposition of PW1 (complainant) and the documentary evidence that the convict-petitioner issued the cheque in question for carrying on a business of cattle. In discharge of the said debt, he issued cheque  No.  SBLR  7485640  on  02.11.2020  for  Taka 5,00,000/-  drawn  on  Rupali  Bank  Limited,  Bazar  Road Branch, Barishal in favour of complainant. The complainant presented the cheque to the concerned bank on 02.11.2020 but it was dishonoured endorsing “insufficiency of funds”. Then  she  served  legal  notice  on  10.11.2020  which  was received  by  the  accused  but  the  petitioner  failed  to  make payment. Consequently, the case was filed on 20.12.2020. PW1 successfully proved the prosecution case. 

The defence case is that the cheque had been lost and that a General Diary Entry being No. 1106 dated 23.02.2020 had been lodged in that regard. Subsequently, the accused filed Miscellaneous Petition Case No. 02 of 2020 before the learned Executive Magistrate, Barishal under Section 98 of the Code of Criminal Procedure on 05.01.2021, which was kept in record on 16.06.2021. The evidence adduced by the defence, however, does not inspire confidence. DW 1, Sonia Begum and DW 3, Hanif Howlader deposed that the dispute had  been  amicably  settled  on  26.08.2020.  However,  the accused failed to produce any document in support of the alleged  settlement  or  adjustment  of  the  loan.  The  defence evidence is also attended with material inconsistencies and contradictions. The Courts below therefore rightly disbelieved the defence version.

The record further shows that the complainant has duly complied with the procedures 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.  The complainant  also  proved  consideration  against  which  the cheque was drawn and that it is the holder of the cheque in due  course.  The  Courts  below  righty  found  the  petitioner guilty of the charge. I find no misreading or non-reading of evidence.  Hence,  the  impugned  judgment  and  order  of conviction does not suffer from any illegality, impropriety or infirmity.

However, with regards to the sentence, reliance may be placed upon the decision passed in Aman Ullah Vs. State, reported in 73 DLR (2021) 541, wherein this Court observed that  in  prosecution  under  Section  138  of  the  Negotiable Instruments Act, the sentence of imprisonment would be a harsh sentence having no penal objective to be achieved. I respectfully concur with the principle enunciated therein. The principal object of the Negotiable Instruments Act is to ensure recovery of the cheque amount rather than to incarcerate the drawer and that imprisonment should ordinarily be resorted to only in appropriate circumstances.

Considering the facts and circumstances of the case, this Court is of the view that the petitioner should be given a few  months  to  pay  the  rest  amount  and  the  sentence  of imprisonment should be set aside in the interest of justice.

In view of the foregoing discussions and ratio the order of the Court is as follows:

The conviction of the petitioner under Section 138 of the  Act,  1881  is  affirmed,  however  the  sentence  of imprisonment is modified. The sentence of 06(six) months simple imprisonment is set aside. The sentence of fine of Tk. 5,00,000/-  which  is  equivalent  to  the  cheque  amount  is upheld.  The  convict-petitioner  has  already  deposited  Taka 2,50,000/- before the trial Court prior to filing the appeal and the  complainant  have  already  received  the  amount.  The convict-petitioner is directed to deposit the remaining portion of  the  dishonoured  cheque  i.e.  Taka  2,50,000/-  to  the complainant-opposite party No. 2 through trial Court within 03(three) months from the date of receipt of this judgment, in default  he  shall  suffer  simple  imprisonment  for  02(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 recover the fine under the provisions of Section 386 of the Code of Criminal Procedure.

In the result, the Rule is discharged with modification of sentence of imprisonment 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.

(Md. Bashir Ullah, J)

Md. Ariful Islam Khan

Bench Officer