Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 5373 of 2024

Md. Nizam Uddin @ Md. Nejam Uddin

...Convict-petitioner

          -Versus-

The State and another

...Opposite parties

No one appears.

...For the convict-petitioner

Mr. Touhidul Hasan, Advocate

...For the complainant-opposite party No. 2 Heard on 20.01.2025

Judgment delivered on 20.01.2025

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 order dated 01.02.2024 passed  on  an  application  for bail  on  the  condition  of  filing  appeal against  the  judgment  and  order  of  conviction  and  sentence  dated 29.10.2023 passed by the Joint Metropolitan Sessions Judge, Court No. 5, Chattogram in Sessions Case No. 1159 of 2023 arising out of C.R. Case  No.  2164  of  2021  (Kotwali)  convicting  the  petitioner  under Section 138 of the Negotiable Instrument Act 1881 and sentencing him to suffer imprisonment for 01(one) year and also to pay a fine of Tk. 3,00,000  (three  lakh)  should  not  be  set  aside  and/or  such  other  or further order or orders as to this Court may deem fit and proper.

No one appears on behalf of the convict-petitioner.

Learned Advocate Mr. Touhidul Hasan appearing on behalf of the complainant-opposite party No. 2 submits that the order granting bail  on  11.09.2024  by  this  Court  for  3(three)  months  expired  on 11.12.2024  and  the  convict-petitioner  neither  filed  an  appeal  nor surrendered before the trial Court. Therefore, he prayed for discharging the Rule.

I have considered the submission of the learned Advocate Mr. Touhidul Hasan who appeared on behalf of the complainant-opposite party No. 2, perused the impugned order passed by the trial Court and the records.

On perusal of the records, it appears that at the time of issuance of the Rule on 11.09.2024 bail was granted to the convict-petitioner for 03(three) months which expired on 11.12.2024. Section 426(2A) of the Code of Criminal Procedure, 1898 empowers the trial Court to grant bail to the accused who is sentenced to suffer imprisonment for a term not  exceeding  one  year  on  condition  to  file  an  appeal  against  the judgment and order of conviction and sentence passed by it.

The Negotiable Instruments Act is a special law. Section 138A is inserted in the said Act by Act No. III of 2006 making provision to deposit 50% of the cheque amount before filing an appeal against the judgment  and  order  of  conviction  and  sentence passed by  the  trial Court. Section 138A of the Negotiable Instruments Act, 1881 imposes a  restriction  and  excludes  the  application  of  the  Code  of  Criminal Procedure, 1898 till the deposit of 50% of the cheque amount to file an appeal  against  the  judgment  and  order  of  conviction  and  sentence passed by the trial Court. Therefore, I am of the view that the trial Court  is  not  empowered  under  Section  426(2A)  of  the  Code  of Criminal Procedure, 1898 to grant bail to the accused convicted under Section 138 of the Negotiable Instrument Act, 1881 by it unless the accused deposit 50% of the cheque amount. Therefore, the Rule is not maintainable in law.

In the result, the Rule is discharged.

The convict-petitioner Md. Nizam Uddin @ Md. Nejam Uddin is directed to surrender before the trial Court forthwith failing which the trial Court is directed to take necessary steps following law.

However, there will be no order as to costs.