IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)  

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 1822 of 2023

Md. Mainul Haque

                                                         ........Convict-petitioner

                 -VERSUS-

The State and another

.…... Opposite parties

None appears

…… 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. Jashim Uddin Rabbani, Advocate

…… For the opposite party No. 2

Heard on: 20.11.2023

And

Judgment on 30th May, 2024

Rule was issued calling upon the opposite parties to show cause as to why the judgment and order of conviction and sentence dated 04.09.2022 passed by the learned Additional Sessions Judge, Sunamgonj in Criminal Appeal No. 26 of 2022 dismissed the appeal affirming the judgment and order of conviction and sentence dated 31.01.2021 passed by the learned Joint Sessions Judge, 1st Court, Sunamgonj  in  Sessions  Case  No.  751  of  2018  convicting  the petitioner  under  section  138  of  the  Negotiable  Instruments  Act, 1881 and sentencing him to suffer imprisonment for one year and also to pay a fine of Tk. 1,50,000/- should not be set aside and/or

pass such other or further order or orders as to this court may seem fit and proper.

 None appeared for the convict-petitioner when the  matter was taken up for hearing. 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 instant rule is liable to be discharged.

I have heard the learned counsel of the complainant-opposite party No. 2, 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 13.11.2017 for repayment of Tk. 75,000/- which he took from the complainant. The value of the cheque is Tk. 75,000/-/-. It was dishonoured by the bank concerned on 13.11.2017. The complainant sent the statutory legal notice to the convict-petitioner on 26.11.2017. The value of the cheque was not paid to the complainant. The case was filed on 17.01.2018. 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 that 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 the appellants 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.  75,000/-  whereas  the convict-petitioner  was  fined  Tk.  1,50,000/-  to  be  given  to  the complainant which requires 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 01(one) year simple imprisonment is set aside. The sentence of fine of Tk. 1,50,000/- (One lac and fifty thousand) is modified to Tk. 75,000/- (Seventy five thousand) which is equivalent to the value of the  dishonoured  cheque.  The  convict-petitioner  has  already deposited Tk. 37,500/- (Thirty seven thousand and five hundred) in the Trial Court before filing the appeal. The Trial Court is directed to give the said deposited amount to the tune of Tk. 37,500/- (Thirty seven thousand and five hundred) 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. 37,500/-  (Thirty  seven  thousand  and  five  hundrad)  to  the complainant-respondent No. 2 within 02 (two) months from the date of  receipt  of  this  order,  in  default  he  will  suffer  simple imprisonment for 01(one) week. 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 realise 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)(if any) at once. Communicate  the  judgment  and  order  to  the  Court  concerned forthwith.

(Mamnoon Rahman, J:)