IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)  

Present:

Mr. Justice Mamnoon Rahman

Criminal Revision No. 4778 of 2023

Mostafizur Rahman @ Md. Mostafazur Rahman              

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

                 -VERSUS-

The State and another

.…... Opposite Parties

With

Criminal Revision No. 4781 of 2023

Tahmim Hossain Pollob

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

The State and another

.…... Opposite Parties

None appears.

…… For the Petitioners. Mr. Mohammad Taifoor Kabir, DAG with

Mr. Md. Lokman Hossain, AAG

Mr. Md. Hatem Ali, AAG

…… For the Opposite Party No. 1 Mr. Md. Zahirul Amin, Advocate

… For the Complainant-Opposite Party no. 2

Heard on: 13.02.2024

And Judgment on: 15.02.2024

Criminal Revision No. 4778 of 2023 and Criminal Revision No. 4781 of 2023 have appeared in the list as item Nos. 14 and 15 for hearing.

Both the rules were heard together and now disposed of by this single judgment as both the revisional applications arising out of same judgment and order of conviction and sentence as well as facts

though the convict petitioners are different but the complainant- opposite party is same.

In Criminal Revision No. 4778 of 2023 this court issued rule on 20.11.2023 which runs as follows;

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 learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka, in Criminal Appeal No. 1405 of 2022 dismissed the appeal affirming the judgment and order dated 28.03.2022 passed by the learned Joint Metropolitan Sessions Judge, 4th Court, Dhaka, in Metro Sessions Case No. 9186 of 2018 arising out of C.R Case No. 1484 of 2017 convicted the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 04 (four) months and also to pay a fine of Tk.33,00,000/- (thirty three lac) should not be set aside and/or pass such other or order as to this court may seem fit and proper.

In Criminal Revision No. 4781 of 2023 this court issued rule on 20.11.2023 which runs as follows;

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 learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka, in

Criminal Appeal No. 1405 of 2022 rejecting the appeal summarily and thereby affirmed the judgment and order of conviction and sentence dated 28.03.2022 passed by the learned Joint Metropolitan Sessions Judge, 4th Court, Dhaka, in Metro Sessions Case No. 9186 of 2018 arising out of C.R Case No. 1484 of 2017 convicted the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 04 (four) months and also to pay a fine of Tk.33,00,000/- (thirty three lac) should not be set aside and/or pass such other or order as to this court may seem fit and proper.

Ms. Nazma Sultana is the Complainant Opposite party No. 2.

None appeared on behalf of the petitioner when the matter is 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 rule is liable to be discharged.

I have heard the learned Advocate for the Complainant- Opposite party No. 2 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- petitioners issued the cheques in question in favour of the

Complainant-Opposite party on 12.07.2017 for repayment of Tk. 21,32,000+11,68,000=33,00,000 which he took from the complainant. The value of the cheques is Tk. 33,00,000/-. The cheque was dishonoured by the bank concerned on 16.07.2017. The complainant sent the statutory legal notice to the convict-petitioner on 02.08.2017. The value of the cheque was not paid to the complainant. The case was filed on 14.09.2017. 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 cases, the value of the dishonoured cheque is Tk. 21,32,000+11,68,000=33,00,000/-. The convict-petitioners were fined Tk. 21,32,000+11,68,000=33,00,000/- 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 4 (four) months imprisonment is set aside. The sentence of fine of Tk. 21,32,000+11,68,000=33,00,000/-, which is equivalent to the value of the dishonoured cheque, is upheld. The convict-petitioners have already deposited Tk. 10,66,000+5,84,000=16,50,000/- in the Court below before filing both the appeals. The Court concerned is directed to give the said deposit to the complainant-opposite party No.2 forthwith. The convict-petitioners are directed to pay the remaining portion of the value of the dishonoured cheque  i.e. Tk. 10,66,000+5,84,000=16,50,000/- totaling Tk. 16,50,000/- to the Complainant-opposite party No. 2 either in full or by installment within 3 (three) months from the date of receipt of this order, in default they will suffer simple imprisonment for 1 (one) month. If the convict-petitioners do 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, they are 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, both the rules are discharged with modification of sentence and with directions made above. The convict-petitioners are 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:)