Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 3153 of 2023

Swadin Hasan Selim

...Convict-petitioner

          -Versus-

The State and another

...Opposite parties

Mr. Md. Aktarujjaman, Advocate 

...For the convict-petitioner

Mr. Mohammad Abul Kashem Bhuiyan, Advocate  

...For the complainant-opposite party No. 2 Heard on 09.06.2024 and 02.07.2024

Judgment delivered on 10.07.2024

On an application filed under Section 439 read with Section 435  of  the  Code  of  Criminal  Procedure,  1898  Rule  was  issued calling  upon  the  opposite  parties  to  show  cause  as  to  why  the judgment  and  order  dated  10.07.2023  passed  by  the  Additional Sessions Judge, Court No. 2, Tangail in Criminal Appeal No 284 of 2022 affirming the judgment and order of conviction and sentence dated 10.04.2022 passed by the Joint Sessions Judge, Court No. 2. Tangail in Session Case No.777 of 2021 arising out of Complaint Register  (C.  R.)  Case  No.  13  of  2021  (Ghatail)  convicting  the petitioner  under  Section  138  of  the  Negotiable  Instruments  Act, 1881 and sentencing him thereunder to suffer simple imprisonment for 1 (one) year and a fine of Tk. 20,00,000 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The  prosecution  case,  in  short,  is  that  the  complainant A.K.M  Masud  Khan  is  a  businessman  and  former  Chairman  of Sandhanpur Union Parishad and the accused Swadin Hasan Selim is his neighbour and also a relative. The accused is the proprietor of Messers Akash Bricks Field and Titas Bricks Field. On 12.10.2018 the accused came to the house of the complainant and received Tk. 43,00,000(forty-three lakh) in advance to supply total 716666 pieces of bricks within the first of April, 2019 but he did not supply the bricks.  The  accused  issued  Cheque  No.  GaChha  0635575  on 05.07.2020  for  payment  of  Tk.  20,00,000  drawn  on  his  Current Account No. 6028502000555 maintained with Sonali Bank Limited, Shaheed Salauddin Cantonment Branch for part payment of the said amount. The complainant presented the said cheque on 19.11.2020 for encashment which was dishonoured with a remark ‘insufficient funds’.  After  that,  he  sent  a  legal  notice  on  25.11.2020  to  the accused for payment of the cheque amount through registered post with AD but he did not pay the cheque amount. Consequently, he filed the case on 07.01.2021.

After  filing  the  complaint  petition,  the  complainant  was examined under Section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate was pleased to take cognizance of the offence against the accused under Section 138 of the Negotiable Instruments  Act,  1881.  The  case  record  was  transferred  to  the Sessions Judge, Taingail and the case was registered as Session Case No. 777 of 2021. The Sessions Judge, Tangail transferred the case to the Joint Sessions Judge, Court No. 2, Tangail for trial.

During  trial,  the  charge  was  framed  against  the  accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over and explained to him and he pleaded not guilty to the charge and claimed to be tried following the law. The complainant examined 1(one) witness to prove the charge. The defence cross- examined P.W. 1. After examination of the prosecution witness, the accused was examined under Section 342 of the Code of Criminal Procedure, 1898 and he again pleaded not guilty. Thereafter, the defence  examined  one  witness  who  was  cross-examined  by  the complainant.

After concluding the trial, the trial Court by judgment and order dated 10.04.2022 convicted the accused Swadin Hasan Selim under  Section  138  of  the Negotiable  Instruments  Act,  1881  and sentenced him thereunder to suffer imprisonment for 1 (one) year and a fine of Tk. 20,00,000 against which the accused filed Criminal Appeal No. 284 of 2022 before the Sessions Judge, Tangail who was pleased to transfer the case to the Additional Sessions Judge, Court No. 2, Tangail. After hearing the appeal, the Additional Sessions Judge, Court No. 2, Tangail by impugned judgment and order dated 10.07.2023  affirmed  the  judgment  and  order  of  conviction  and sentence  passed  by  the  trial  Court  against  which  the  convict- petitioner obtained the instant Rule.

P.W. 1 A.K.M Masud Khan is the complainant. He stated that on 05.07.2020 the accused Md. Swadin Hasan Selim issued a cheque  in  his  favour  for  payment  of  Tk.  20,00000  which  was dishonoured on 19.11.2020 due to ‘insufficient funds’. After that, he served a legal notice on 25.11.2020 but he did not pay the cheque amount.  He  proved  the  complaint  petition  as  exhibit  1  and  his signature  as  exhibit  1/1.  He  proved  the  cheque  as  exhibit  2, dishonour slip as exhibit 3, the postal receipt as exhibit 4 and the legal notice as exhibit 5. During cross-examination, he stated that the accused is the owner of Bricks Field. He received Tk. 43 lakh to supply the bricks. He denied the suggestion that he received Tk. 3 lakh from the accused. He denied the suggestion that he wrote the excess  amount  on  the  cheque  and  the  accused  did  not  sign  the cheque. He also denied the suggestion that he did not give Tk. 43 lakh to the accused.

D.W. 1 Md. Swadin Hasan Selim is the accused. He denied the suggestion that on 05.07.2020 at 10 am he issued a cheque in favour  of  the  complainant  for  payment  of  Tk.  20,00000.  The complainant took delivery of total 3 lakh bricks and value of the each piece of brick was Tk. 5.25. At the time of delivery of the bricks in March and April, he was sick and he was under treatment at Dhaka. At that time, he took delivery of total 1,35,000 bricks. Total  Tk.  1,65,000  was  due.  He  issued  a  blank  cheque  but  the amount was written by the complainant. During cross-examination, he stated that in the books of entry, it has been mentioned that the complainant  received  total  1,35,000  bricks  and  at  the  time  of delivery of the bricks he was not present in the bricks field. There are no documents to show that he supplied the total 1,35,000 bricks. He denied the suggestion that he received Tk. 43 lakh by selling 71,666  bricks.  Subsequently,  the  cheque  was  dishonoured  on 19.11.2000. After being dishonoured the complainant issued legal notice on 25.11.2020.                                                                       

Learned Advocate Mr. Md. Aktarujjaman engaged on behalf of the convict-petitioner submits that both the complainant and the convict-petitioner filed a joint application stating that the convict- petitioner  paid  the  entire  cheque  amount  and  the  complainant received the said amount. Therefore, he prayed for making the Rule absolute considering the compromise made between parties.

Learned Advocate Mr. Mohammad Abul Kashem Bhuiyan appearing on behalf of the complainant-opposite party No. 2 submits that the convict-petitioner Swadin Hasan Selim issued a cheque on 05.07.2020  for  payment  of  Tk.  20,00,000  and  the  same  was dishonoured on 19.11.2020 for ‘insufficient funds’ and after service of  notice  upon  the  accused  he  did  not  pay  the  cheque  amount. However, he submits that both the complainant and the accused settled the dispute out of Court and the complainant received the entire cheque amount Tk. 20,00,000.  

I have considered the submission of the learned Advocate Mr.  Md.  Aktarujjaman  who  appeared  on  behalf  of  the  convict- petitioner and the learned Advocate Mr. Mohammad Abul Kashem Bhuiyan  who  appeared  on  behalf  of  the  opposite  party  No.  2, perused the evidence, the impugned judgments and orders passed by the Courts below and the records.

On perusal of the records, it appears that the statement made by P.W. 1, as regards the issuance of the cheque by the convict- petitioner, is admitted by the accused during the cross-examination of D.W. 1. The defence case is that he issued a blank cheque in favour of the complainant and partly supplied the bricks. During cross-examination,  D.W.  1  admitted  that  after  dishonour  of  the cheque, the complainant sent a legal notice on 25.11.2020. There is no denial of the facts that the complainant did not receive the said notice but he did not pay the cheque amount. Therefore, I am of the view that the accused issued the cheque for consideration and he did not pay the cheque amount after service of the notice upon him. Therefore the convict-petitioner committed offence under Section 138 of the Negotiable Instruments Act, 1881.

The Negotiable Instruments Act, 1881 is a special law and the offence under Section 138 of the Negotiable Instruments Act, 1881 is not compoundable.

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) of the said Act is rebuttable. The convict-petitioner failed to rebut the presumption under Section 118(a) of the said Act. Therefore I am of the view that the  convict-petitioner  Swadin  Hasan  Selim  issued  the  cheque (exhibit 2) in favour of the payee-complainant for consideration. After making a demand in writing under Section 138(1)(b) of the said Act, he did not pay the cheque amount despite the notice served upon  him.  In  the  meantime,  the  accused  paid  the  entire  cheque amount. 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 convict-petitioner beyond all reasonable doubt and the Courts below  on  proper  assessment  and  evaluation  of  evidence  legally passed the impugned judgments and orders.

Considering the facts and circumstances of the case and the gravity of the offence, I am of the view that the ends of justice would be best served if the sentence passed by the trial Court is modified as under;

The convict-petitioner Swadin Hasan Selim 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. 20,00,000.

In the result, the Rule is disposed of with a modification of the sentence.

The complainant is entitled to get the fine amount. Since the complainant admitted that he received the fine amount from the convict-petitioner, therefore he is not required to deposit the fine amount again.

Send down the lower Court’s records at once.