In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction)

Present:

Mr. Justice Md. Khairul Alam

Criminal Revision No. 3642 of 2024.

In the matter of: Mohammad Jahangir Alam

.......... Convict-petitioner. -Versus-

The State and another

.......... Opposite parties.

None appears

..... For the petitioner. Mr. Khandoker Sultan Ahmed, Advocate

... For the opposite party No. 2.

Heard On: 07.11.2024 & Judgment on: 13.11.2024

Md. Khairul Alam, J:

By filing this revisional application the convict petitioner challenged the legality and propriety of the judgment and order dated 19.02.2024 passed by the learned Additional Metropolitan Sessions Judge, 2nd Court, Chattogram in Criminal Appeal No. 1087 of 2022 dismissing the appeal and thereby affirming the judgment and order of conviction and sentence dated 28.06.2022 passed  by  the  learned  Joint  Metropolitan  Sessions  Judge,  6th Court, Chattogram in Sessions Case No. 3116 of 2019 arising out

of C.R. Case No. 1383 of 2017 (Kotwali) convicting the petitioner under  section  138  of  the  Negotiable  Instruments  Act,  1881 (shortly,  the  NI  Act)  and  sentencing  him  to  suffer  simple imprisonment for 03 (three) months and also to pay a fine of Tk. 2,43,465/-.

The prosecution story, in short, is that the present petitioner in the course of his business obtained loan from the opposite party No. 2, the City Bank Ltd. To adjust the liability the petitioner

SB

issued a cheque bearing number  A 12118465 dated 17.04.2017

for an amount of Tk. 2,33,465/- in favour of City Bank Ltd. On presentation, the cheque was dishonoured on 22.05.2017 with the endorsement “Insufficient Fund”. On 04.06.2017 the bank served notice to the petitioner, but the petitioner did not pay the amount. Hence, the City Bank Ltd. as complainant filed C.R. Case No. 1383 of 2017 (Kotwali) before the Court of Chief Metropolitan Magistrate, Chattogram through one of its authorized employees. Accordingly, cognizance was taken against the petitioner for the offence of section 138 of the NI Act. Ultimately, the case was renumbered  as  Sessions  Case  No.  3116  of  2019  and  was transferred to the Court of Joint Metropolitan Session Judge, 6th Court, Chattogram for trial. The trial Court framed charge against the petitioner under section 138 of the NI Act. During the trial, the prosecution examined 01 (one) witness to prove the charge. Since the trial was held in absentia the petitioner could not be examined under section 342 of the Code of Criminal Procedure. After the trial,  the learned Joint  Metropolitan Sessions  Judge, 6th  Court, Chattogram considering the evidence on record by the judgment and order of conviction and sentence dated 28.06.2022 found the petitioner guilty of the offence under section 138 of the NI Act and sentenced him to suffer simple imprisonment for 03 (three) months and also to pay a fine of Tk. 2,43,465/-.

    Against the said judgment and order of conviction and sentence the petitioner preferred Criminal Appeal No. 1087 of 2022  before  the  Court  of  Metropolitan  Sessions  Judge, Chattogram  which  was  transferred  to  the  Court  of  Additional Metropolitan Sessions Judge, 2nd Court, Chattogram. The learned Additional Metropolitan Sessions Judge, 2nd Court, Chattogram after  hearing  the  appeal  by  the  judgment  and  order  dated 19.02.2024 dismissed the said appeal and thereby affirmed the judgment and order of conviction and sentence dated 28.06.2022 passed by the trial Court.

 Being aggrieved thereby the petitioner filed this revisional application and obtained this Rule.

None one appears for the petitioner to support the Rule though this matter appears in the delay cause list for a number of days.

Mr.  Khandoker  Sultan  Ahmed,  the  learned  Advocate appearing for respondent No. 2 supports the impugned judgment and order.

The point for determination is whether the courts below were legally justified in passing the impugned judgment and order of conviction and sentence.

Let’s  examine  the  prosecution  witness  to  adjudicate  the

issue.

P.W-1, Hazi Md. Irfanul Rashid in his examination-in-chief stated  that  for  payment  of  loan  Md.  Jahangir  Alam  issued  a cheque  for  an  amount  of  Tk.  2,43,465/-  in  favour  of  the complainant. After dishonour of the cheque, the petitioner was given legal notice, but he did not pay the amount, hence the case. P.W-1  exhibited  the  petition  of  complaint  as  exhibit-1,  his signatures thereon as exhibit 1/1 series, the original cheque as exhibit-2,  dishonour  slip  as  exhibit-3,  the  legal  notice,  postal receipt, and the returned envelops as exhibit- 4 series, the power of attorney as exhibit 5.

 From the said evidence it appears that the petitioner issued a cheque in favour of the complainant on 17.04.2017 (exhibit-2). On prosecution, the cheque was dishonored on 22.05.2017 for insufficiency of funds (exhibit-3). Statutory notice was served on 04.06.2017(exhibit-4 series), but the petitioner failed to make the payment  of  the  said  amount  to  the  complainant.  Hence,  the complainant  filed  the  petition  of  complaint  on  16.07.2017 (exhibit-1). All the said acts were done within the statutory period.

In a criminal proceeding, no onus generally lies upon the accused, but in the case of the offence of section 138 of the NI Act, like the civil suit, the separate onus lies upon the prosecution and  the  defence,  and  while  the  prosecution  by  producing  the cheque, dishonour slip, copy of the notice, and acknowledgment due proves that the cheque issued by the drawer was dishonour for insufficiency of funds and the drawer did not pay the amount despite serving the notice. Then the drawer would be required to satisfy the Court under what circumstances the cheque was issued and at the time of presentation, the cheque was without having any consideration.

In  the  present  case,  it  appears  that  the  prosecution  by adducing evidence proved that the petitioner issued a cheque in favour  of  the  complainant,  on  prosecution,  the  cheque  was dishonored for insufficiency of funds. Despite serving statutory notice, the petitioner failed to make the payment. Thereby, the prosecution discharged its onus. On the other hand, the petitioner did not face the trial and thereby did not explain to the Court under what circumstances he issued the cheque and at the time of presentation of the cheque whether there was any consideration.

A question may arise in this case, whether the service of notice was deemed service. I have compared the addresses given on the postal cover (exhibit 4 series) with the addresses of the petitioner given by himself in the memorandum of appeal and this revisional application and found that those are the same, hence, the notice sent by the registered post with acknowledgment due contains the correct addresses of the petitioner and the petitioner deliberately  evaded  to  receive  the  said  notice.  Hence,  the presumption  of  the  deemed  service  of  the  said  notice  can  be drawn. Therefore, the Courts below rightly found the petitioner guilty of the offence of section 138 of the NI Act.

In the above facts and circumstances, I am of the view that the Courts below passed the impugned judgment and order legally and do not find any reason to interfere with the same.

Accordingly, I do not find any merit in the Rule.

In the result, the Rule is discharged.

The order of bail granted at the time of issuance of this Rule is hereby recalled.

The petitioner is directed to surrender before the trial Court within 30 days of receiving this judgment and order by the trial Court  to  serve  his  remaining  sentence.  The  petitioner  is  also directed to pay the remaining amount of the fine within that period otherwise the trial court will proceed in accordance with the law.

Sent down the lower Courts’ record.

Communicate this judgment and order at once.

Kashem, B.O