Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 4360 of 2022 Montasir Billah Shahariar

...Convict-petitioner

          -Versus- The State and another

...Opposite parties

Mr. Sakib Mabud, Advocate

...For the convict-petitioner

Mr. Md. Harun-Or-Rashid, Advocate with

Mr. Md. Mozammel Hossain, Advocate

...For the complainant-opposite party No. 2 Heard on 30.10.2024 and 7.11.2024  

Judgment delivered on 11.11.2024

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 impugned  judgment  and  order  dated  04.03.2018  passed  by Additional  Metropolitan  Sessions  Judge,  Court  No.  6,  Dhaka  in Criminal Appeal No. 567 of 2017 affirming those dated 12.03.2017 passed by Joint Metropolitan Sessions Judge, Court No. 6, Dhaka in Metropolitan Sessions Case No. 8321 of 2014 arising out of C. R. Case No. 283 of 2014 convicting the appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer imprisonment for 1(one) year and fine of Tk. 35,00,000 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 accused Montasir Billah Shahariar took loan of Tk. 81,00,000 from the complainant A.K.M.  Azad.  He  issued  cheques  Nos.  IBE  3550428  dated 17.09.2013  for  payment  of  Tk.  9.00,000,  IBE  3550426  dated 22.09.2013 for payment of Tk. 9,00,000 and IBE 3550427 dated 25.09.2013 for payment of Tk. 9,00,000 drawn on his Account No. 20501770100372418  maintained  with  Islami  Bank  Bangladesh Limited, Gulshan, Dhaka Branch. The complainant presented the said cheques for encashment through Sonali Bank Ltd, Naval Head Quarter  Branch,  Banani  but  the  cheques  were  dishonoured  on 23.12.2013 with the remark ‘insufficient funds’. On 12.01.2014, he sent a legal notice to the accused through his learned Advocate for payment  of  the  cheque  amount.  The  accused  received  the  legal notice  on  14.01.2014  but  he  did  not  pay  the  cheques  amount. Consequently,  the  complainant  filed  the  case  on  12.03.2014 complying with the procedure under Section 138 of the Negotiable Instruments Act, 1881.

After  that,  the  case  record  was  sent  to  the  Metropolitan Sessions Judge, Dhaka who sent the case to the Joint Metropolitan Sessions Judge, Court No. 6, Dhaka for trial and disposal. During the trial, 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 prosecution examined 1(one) witness to prove the charge against the accused. During trial, the accused was absconding for which he was not examined under Section 342 of the Code of Criminal Procedure, 1898.

After concluding the trial, the trial Court by judgment and order dated 12.03.2017 convicted the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to suffer rigorous imprisonment for 1(one) year and a fine of Tk. 35,00,000 against which the accused filed Criminal Appeal No. 567 of 2017 before the Metropolitan Sessions Judge, Dhaka who transferred the appeal to the Additional Metropolitan Sessions Judge, Court No. 6, Dhaka. After hearing, the appellate Court by impugned judgment and order affirmed the judgment and order passed by the trial Court against which the convict-petitioner obtained the instant Rule.

P.W. 1 Md. Abdul Jalil stated that he obtained power of attorney from the complainant A.K.M. Azad. He proved the power of  attorney  as  exhibit  1.  The  accused  Montasir  Billah  Shahariar issued three cheques on 17.09.2013, 22.09.2013 and 25.09.2013 for payment of total Tk. 27,00,000. The cheques were dishonoured on 23.12.2013 and the legal notice was sent on 12.01.2014 through registered post but he did not pay the cheques amount. He proved the  complaint  petition  as  exhibit  2  and  his  signature  on  the complaint  petition  as  exhibit  2/1,  the  cheque  as  exhibit  3,  the dishonour slip as exhibit 4, the postal receipt as exhibit 5 and the legal notice as exhibit 5/1. The accused was absconding.

Learned Advocate Mr. Sakib Mabud appearing on behalf of the convict-petitioner submits that the convict-petitioner Montasir Billah Shahariar issued the cheques for business purposes but due to hardship, he could not pay the cheque amount after service of notice. However, he submits that the complainant-opposite party No. 2 and the convict-petitioner settled the dispute between them regarding the cheque amount and deposited the entire amount in the trial Court. He prayed for making the Rule absolute accepting the compromise made between the parties.

Learned  Advocate  Mr.  Md.  Harun-Or-Rashid  appearing along with learned Advocate Mr. Md. Mozammel Hossain on behalf of the complainant-opposite party No. 2 submits that the accused issued  three  cheques  for  payment  of  Tk.  27,00,000  and  after complying  with  all  the  procedures  under  Section  138  of  the Negotiable Instruments Act, 1881 filed the case and the prosecution proved the charge against the accused beyond all reasonable doubt. However, he admitted that both the complainant-opposite party No. 2 and the convict-petitioner settled the dispute between them and he withdrew 50% of the cheque amount during the pendency of the appeal and he is willing to withdraw the remaining 50% of the cheque amount deposited by the convict-petitioner. He also prayed for acceptance of the compromise made between the parties.

I have considered the submission of the learned Advocates of both parties, 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 complainant- opposite party No. 2 filed an application sworn on 06.11.2024 to withdraw  Tk.  13,50,000  stating  that  the  complainant  has  no objection if the Court set aside the impugned judgments and orders passed by the Courts below. The convict-petitioner also filed an application sworn on 05.11.2024 stating that after disposal of the appeal, on 23.10.2022 the convict-petitioner deposited the remaining 50% of the cheques amount Tk. 13,50,000 and 50% of the cheque amount deposited by the convict-petitioner before filing the appeal had  been  withdrawn  by  the  complainant.  The  Negotiable Instruments Act, 1881 is a special law and the offence under Section 138 of the said Act is not compoundable. Therefore, after filing the case the parties are not legally entitled to make any compromise regarding the cheque.

On  perusal  of  the  evidence,  it  appears  that  the  convict- petitioner issued cheques Nos. IBE 3550428 dated 17.09.2013 for payment  of  Tk.  9.00,000,  IBE  3550426  dated  22.09.2013  for payment of Tk. 9,00,000 and IBE 3550427 dated 25.09.2013 for payment  of  Tk.  9,00,000  drawn  on  his  Account  No. 20501770100372418  maintained  with  Islami  Bank  Bangladesh Limited, Gulshan Branch. The said cheques were proved as exhibits 3, 3/1 and 3/2. The cheques were presented through Sonali Bank Limited and were dishonoured on 23.12.2013 and the bank issued the dishonour slip which was proved as exhibit 4. The complainant issued a legal notice on 12.01.2014 through registered post with AD upon  the  accused  and  the  accused  received  the  said  notice  on 14.01.2014. During the trial, the accused was absconding and he did not cross-examine P.W. 1. Therefore, the issuance of the cheques by

the accused in favour of the complainant for payment of total Tk. 27,00,000 is admitted by the accused.

The learned Advocate Mr. Sakib Mabud appearing on behalf of  the  convict-petitioner  submits  that  after  service  of  notice,  he could not pay the cheque amount due to hardship. Therefore, I am of the  view  that  the  complainant  after  complying  with  all  the procedures provided in Section 138 of the Negotiable Instruments Act, 1881 filed the complaint petition and P.W. 1 proved the charge against the accused beyond all reasonable doubt. 

However, considering 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 Courts below is modified as under;

The  convict-petitioner  Montasir  Billah  Shahariar  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. 27,50,000.

The complainant-opposite party No. 2 is entitled to get the cheque amount Tk. 27,00,000. Since the complainant admitted that he  received  50%  of  the  cheque  amount,  he  is  now  entitled  to withdraw the remaining 50% of the cheque amount deposited by the convict-petitioner after passing the impugned judgment and order by the appellate Court below.

The convict-petitioner is directed to pay the remaining fine amount of Tk. 50,000 in the trial Court which will be deposited in the public exchequer. 

The trial Court is directed to allow the complainant-opposite party No. 2 to withdraw the remaining 50% of the cheque amount Tk. 13,50,000.

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

However, there will be no order as to costs

Send down the lower Court’s records at once.