Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 1908 of 2023 Tanjina

...Convict-petitioner           -Versus-

The State and another

...Opposite parties

Mr. Ehsanul Hoque, Advocate

...For the convict-petitioner

Mr. Shahin Alam, Advocate

...For the complainant-opposite party No. 2 Heard on 06.11.2024 and 21.11.2024  

Judgment delivered on 26.11.2024

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  23.02.2023  passed  by Additional Metropolitan Sessions Judge, Court No. 11, Dhaka in Criminal Appeal No. 977 of 2022 affirming the judgment and order of  conviction  and  sentence  dated  10.03.2015  passed  by  Joint Metropolitan Sessions Judge, Court No. 5, Dhaka in Metropolitan Sessions Case No. 4254 of 2014 arising out of C.R. Case No. 661 of 2013 convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing her to suffer imprisonment for 1(one) year and fine of Tk. 10,00,000 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 complaint Md. Billal Hossain is the proprietor of S.M. Auto Centre, Ramna, Dhaka. The accused Tanjina issued Cheque No. 0153400 dated 16.09.2013 in favour of S.M. Auto Centre for payment of Tk. 10,00,000 drawn on her account maintained with Eastern Bank Limited, Dilkusha, Commercial Area, Dhaka. The complainant presented the cheque on 08.10.2013  which  was  dishonoured  on  the  same  date  with  the remark ‘insufficient funds’. He sent a legal notice on 10.10.2013 to the accused and he did not pay the cheque amount after receipt of the  said  notice.  Thereafter,  he  filed  the  complaint  petition  on 03.12.2013.

After filing the complainant 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.  Subsequently,  the  case  was  sent  to  the Metropolitan Sessions Judge, Dhaka who sent the case to the Joint Sessions Judge, Court No. 5, Dhaka for trial and disposal.

During  trial,  the  charge  was  framed  against  the  accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over to the accused  and she pleaded not guilty to the charge and claimed to be tried following the law. The prosecution examined  1  P.W.  to  prove  the  charge  against  the  accused.  The accused  was  absconding  during  the  trial  for  which  he  was  not examined under Section 342 of the Code of Criminal Procedure, 1898.

After concluding the trial, the Joint Sessions Judge, Court No. 5, Dhaka by judgment and order dated 10.03.2015 was pleased to  convict  the  accused  under  Section  138  of  the  Negotiable Instruments Act, 1881 and sentenced him to suffer imprisonment for 1(one) year and a fine of Tk. 10,00,000 against which the accused Tanjina filed Criminal Appeal No. 977 of 2022 in the Metropolitan Sessions  Judge,  Dhaka.  The  appeal  was  heard  by  Additional Metropolitan  Sessions  Judge,  Court  No.  11,  Dhaka  who  by impugned judgment and order affirmed the judgment and order of conviction and sentence passed by the trial Court against which the convict-petitioner obtained the Rule.

P.W. 1 Md. Billal Hossain is the complainant. He stated that the accused Tanjina issued a cheque on 16.09.2013 for payment of Tk. 10,00,000. After presenting the cheque it was dishonoured on 08.10.2013 with the remark ‘insufficient funds’. On 10.10.2013 he sent the legal notice and filed the case on 03.12.2013. He proved the Cheque No. 0153400 dated 16.09.2013 as exhibit 1, dishonour slip as exhibit 2, legal notice, postal receipt and AD as exhibit 3 series. He proved the complaint petition as exhibit 4 and his signature as exhibit 4. The accused was absconding during the trial.

Learned Advocate Mr. Ehsanul Hoque appearing on behalf of the convict-petitioner submits that the accused issued the cheque (exhibit  1)  in  favour  of  the  complainant  but  the  same  was dishonoured due to ‘insufficient funds’. After receipt of the said notice, she could not pay the cheque amount due to her financial hardship. However, he submits that the convict-petitioner and the complainant-opposite party No. 2 settled the dispute between them out of Court and the convict-petitioner paid Tk. 5,00,000 in cash to the  complainant-opposite party  No.  2  and  deposited  50%  of  the cheque amount in the trial Court before filing the appeal. He prayed for acceptance of the compromise made between the parties.

Learned Advocate Mr. Shahin Alam appearing on behalf of the  complainant-opposite  party  No.  2  submits  that  the  accused issued a cheque on 16.09.2013 for payment of Tk. 10,00,000 in favour  of  the  complainant  but  the  same  was  dishonoured  on 08.10.2013  and  he  sent  a  legal  notice  on  10.10.2013  through registered post with AD but the accused did not pay the cheque amount although he received the notice and the complainant filed the case complying with all the procedure under Section 138 of the Negotiable  Instruments  Act,  1881.  The  prosecution  proved  the charge against the accused beyond all reasonable doubt. However, he  submits  that  the  complainant-opposite  party  No.  2  and  the convict-petitioner settled the dispute between them regarding the cheque (exhibit 1) and he received Tk. 5,00,000 in cash from the convict-petitioner  and  he  is  willing  to  withdraw  50%  of  the remaining cheque amount deposited by the convict-petitioner in the trial Court before filing the appeal. 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 joint application sworn on 14.11.2024 by both parties.

On perusal of the joint application for compromise dated 14.11.2024,  it  reveals  that  both  the  convict-petitioner  and  the complainant-opposite party No. 2 settled the dispute out of Court and executed a compromise on 14.11.2024 (Annexure-D) stating that the complaint-opposite party No. 2 received Tk. 5,00,000 in cash  and  he  is  willing  to  receive  50%  of  the  cheque  amount deposited by the convict-petitioner in the trial Court before filing the appeal.

The Negotiable Instruments Act, 1881 is a special law and the offence under Section 138 of the Negotiable Instruments Act, 1881 is not compoundable. After filing the complaint petition, the Court  is  not  empowered  to  dispose  of  the  case  considering  the compromise made between the parties. The Court shall dispose of the case considering merit. Therefore, the Rule cannot be disposed of considering the compromise made between the parties.

On  perusal  of  the  records,  it  appears  that  the  convict- petitioner Tanjina issued Cheque No. 0153400 dated 16.09.2013 in favour of the complainant Md. Billal Hossain for payment of Tk. 10,00,000  (exhibit  1)  and  the  cheque  was  dishonoured  on 08.10.2013 with a remark ‘insufficient funds’ and the bank also issued the dishonour slip (exhibit 2). After that, the complainant sent a legal notice on 10.10.2013 through a registered post with AD (exhibit 3 series). There is no denial of the fact that the accused did

not issue the cheque. The learned Advocate Mr. Ehsanul Hoque appearing on behalf of the convict-petitioner admitted that despite the notice served upon the convict-petitioner, she could not pay the cheque amount due to her financial hardship. Therefore, I am of the view that the convict-petitioner committed the offence under Section 138 of the Negotiable Instruments Act, 1881 and the complainant- opposite party No. 2 filed the case following the procedure under Section  138  of  the  Negotiable  Instruments  Act,  1881.  The prosecution  proved  the  charge  against  the  accused  beyond  all reasonable doubt.

Considering  the  gravity  of  the  offence  and  the  facts  and circumstances of the case, 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 Tanjina is found guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and she is sentenced to pay a fine of Tk. 10,00,000.

The complainant-opposite party No. 2 is entitled to get the fine amount of Tk. 10,00,000.

It  is  admitted  that  the  complainant-opposite  party  No.  2 received Tk. 5,00,000 in cash from the convict-petitioner. Therefore, he is only entitled to get the remaining 50% of the cheque amount deposited by the accused in the trial Court before filing the appeal. 

The trial Court is directed to allow the complainant-opposite party  No.  2  to  withdraw  50%  of  the  remaining  cheque  amount deposited by the convict-petitioner before filing the appeal.

With  the  above  direction  and  observation,  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.