Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 3577 of 2023

Sarkar Md. Tohidul Islam alias Md. Tohidul Islam

...Convict-petitioner

          -Versus-

The State and another

...Opposite parties

Mr. Md. Ekramul Hoque, Advocate with

Mr. Md. Golam Subhan Chowdhury, Advocate

...For the convict-petitioner

Mr. Mazedul Islam Patwary, Advocate

...For the complainant-opposite party No. 2 Heard on 15.07.2024 and 20.08.2024  

Judgment delivered on 27.08.2024

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  25.05.2023  passed  by  the Sessions Judge, Lalmonirhat in Criminal Appeal No. 04 of 2022 affirming the judgment and order dated 23.09.2021 passed by the Joint Sessions Judge, Court No. 1, Lalmonirhat in Sessions Case No. 632  of  2018  arising  out  of  C.R.  Case  No.  163  of  2018  (Lal) convicting the petitioner under Section 138(1) of the Negotiable Instruments  Act,  1881  and  sentencing  him  thereunder  to  suffer rigorous imprisonment for 01(one) year and fine of Tk. 3,00,000 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 Sarkar Md. Tohidul Islam alias Md. Tohidul Islam was previously known to the complainant Mosammat Biva Khatun and he took a loan of Tk. 3,00,000 from the complainant. On 04.03.2018 the accused issued Cheque No.  SBLR  4213198  drawn  on  his  Current  Account No. 8366 maintained with Rupali Bank Ltd, Lalmonirhat Branch. The complainant presented the said cheque for encashment which was dishonoured on 19.03.2018 with a remark ‘insufficient funds’. On 27.03.2018 she sent a legal notice. The accused received the legal notice on 05.04.2018. He did not pay the cheque amount. After that, she filed the complaint petition.

During trial, Joint Sessions Judge, Court No. 1, Lalmonirhat framed  charge  against  the  accused  under  Section  138(1)  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. The defence did  not  cross-examine  P.W.  1.  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 23.09.2021 convicted the accused under Section 138(1) of  the  Negotiable  Instruments  Act,  1881  and  sentenced  him thereunder to suffer rigorous imprisonment for 1(one) year and a fine  of  Tk.  3,00,000  against  which  the  accused  filed  Criminal Appeal No. 04 of 2022 before the Sessions Judge, Lalmonirhat who by  impugned  judgment  and  order  was  pleased  to  affirm  the judgment  and  order  passed  by  the  trial  Court  against  which  he obtained the instant Rule.

P.W. 1 Most. Biva Khatun is the complainant. She stated that the accused Sarkar Md. Tohidul Islam was known to her and he took loan of Tk. 3 lakh before 1 year of the issuance of the cheque but he did not pay the money. On 04.03.2018 he issued Cheque No. SBLR 4213198 drawn on his account maintained with Rupali Bank Ltd, Lalmonirhat Branch. On 19.03.2018 the cheque was dishonoured for ‘insufficient funds’. On 27.03.2018 a legal notice was sent which was received by the accused on 05.04.2018 but he did not pay the cheque amount. Consequently, she filed the case. She proved the complaint  petition  as  exhibit  1,  his  signature  on  the  complaint

petition as exhibit 1/1, the cheque as exhibit 2, the dishonour slip as exhibit 3, legal notice as exhibit 4, postal receipt as exhibit 5 and the acknowledgement receipt as exhibit 6.

Learned Advocate Mr. Md. Ekramul Hoque appearing along with the learned Advocate Mr. Md. Golam Subhan Chowdhury on behalf of the convict-petitioner submits that both the complainant- opposite party No. 2 and the convict-petitioner settled the dispute out  of  Court  and  the  convict-petitioner paid  50%  of  the  cheque amount to the complainant. He prayed for making the Rule absolute considering the compromise dated 15.07.2024 made between the complainant-opposite  party  No.  2  and  the  convict-petitioner (Annexure-X).

Learned Advocate Mr. Mazedul Islam Patwary appearing on behalf  of  the  complainant-opposite party No.  2  submits  that  the accused  issued  the  cheque  for  payment  of  Tk.  3,00,000  on 04.03.2018  but  the  same  was  dishonoured.  Consequently,  the complainant sent a legal notice but the accused did not pay the cheque amount. She filed the case following the procedure provided in Section 138 of the Negotiable Instruments Act, 1881. However, he submits that both the complainant-opposite party No. 2 and the convict-petitioner  settled  the  dispute  between  them  and  received 50% of the cheque amount Tk. 1,50,000 from the convict-petitioner and he is willing to receive the remaining 50% of the cheque amount deposited by the convict-petitioner before filing the appeal.

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  convict- petitioner and the complainant-opposite party No. 2 filed a joint application for compromise sworn on 15.07.2024 stating that before filing the appeal, the convict-petitioner deposited 50% of the cheque amount in the trial Court and during the pendency of the Rule, the

convict-petitioner paid Tk. 1,50,000 to the complainant and settled the dispute out of Court.

The Negotiable Instruments Act, 1881 is a special law and the offence under Section 138 of the Negotiable Instruments Act, 1881 is non-compoundable. Therefore, there is no scope to dispose of the Rule considering the compromise made between the parties. After filing the case under Section 138 of the said Act, the Court shall dispose of the case considering the merit of the case.

On perusal of the evidence, it further reveals that the convict- petitioner issued Cheque No. SBLR 4213198 on 04.03.2018 (exhibit 2)  drawn  on  his  account  maintained  with  Rupali  Bank  Ltd, Lalmonirhat  Branch  and  the  said  cheque  was  dishonoured  on 19.03.2018 with a remark ‘insufficient funds’ and accordingly, the bank  issued  the  dishonour  sleep  (exhibit  3).  After  that,  the complainant sent a legal notice (exhibit 4) on 27.03.2018 to the accused  which  was  received  on  05.04.2018.  Despite  the  notice received by the convict-petitioner regarding the dishonour of said cheque,  he  did  not  pay  the  cheque  amount.  Consequently,  the complainant filed the case on 07.05.2018. The postal receipt was proved as exhibit 5 and the acknowledgement due was proved as exhibit  6.  The  defence  did  not  cross-examine  P.W.  1.  The complainant  filed  the  case  complying  with  the  procedure  under Section 138 of the Negotiable Instruments Act, 1881.

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 neither adduced evidence nor cross-examined  P.W.  1  to  rebut  the  presumption  under  Section 118(a) of the said Act. Therefore I am of the view that the convict- petitioner Sarkar Md. Tohidul Islam alias Md. Tohidul Islam 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. 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 of conviction.

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 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. 3,00,000.

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

Since the complainant admitted that she received 50% of the cheque  amount  in  cash  from  the  accused,  he  is  not  required  to deposit the fine amount again in the trial Court. 

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

Send down the lower Court’s records at once.