IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

              (CRIMINAL APPELLATE JURISDICTION)

Present:

     Mr. Justice Md. Bashir Ullah

Criminal Appeal No. 3220 of 2025

In the matter of:

An Appeal under Section 410 of the Code of Criminal Procedure

-And-

In the matter of:

Md. Masud Alam

                          ... Appellant -Versus-

The State and another

                                ... Respondents

Mr. Md. Asmall Bin Alam Mithu with Mr. Shaikh Shariful Islam, Advocates

                                   ... For the Appellant

Mr. Mohammad Abdul Aziz Talukder, Advocate

... For the Respondent Nos. 2(a) to 2(c)

Mr. Md. Shafiquil Islam, D.A.G with

         Ms. Farhana Abedin, A.A.G with

Mr. Hemaith Uddin, A.A.G and

Mr. K. M. Saiful Islam, A.A.G

… For the State

Heard on: 12.07.2026 and 13.07.2026 Judgment on: 15.07.2026

This appeal, preferred under Section 410 of the Code of Criminal Procedure, 1898 is directed against the judgment and order  dated  28.02.2021  passed  by  the  learned  Additional

Sessions Judge, Court No. 7, Dhaka in Sessions Case No. 2322 of 2019 arising out of C.R. Case No. 457 of 2018 convicting the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer rigorous imprisonment for  06(six)  months  and  to  pay  a  fine  of  Taka  13,00,000/- (thirteen lac).

The  prosecution  case,  in  short,  is  that  the  accused obtained a loan of Taka 13,00,000/- from the complainant for doing  his  business  smoothly.  In  discharge  of  the  debt,  the accused  issued  cheque  No.  CD/A  2392448  on  01.12.2017, drawn on Dutch-Bangla Bank Limited for Taka 13,00,000/-. The complainant presented the cheque to the concerned bank for encashment on 24.05.2018 but the same was dishonoured with the endorsement “Drawers Signature Differ of Missing” on 27.05.2018. Thereafter, the complainant served a statutory legal  notice  upon  the  accused  on  12.06.2018  demanding payment.

Despite  such  notice,  the  accused  failed  to  make  the payment  within  the  statutory  period.  Consequently,  the complainant instituted C.R. Case No. 457 of 2018 before the learned  Chief  Judicial  Magistrate  (Keranigonj  Cognizance)

Court, Dhaka under Section 138 and 140 of the Negotiable Instruments Act, 1881.

The  accused  absconded  and  deliberately  concealed himself with a view to evading arrest and trial. So, the learned Magistrate took cognizance of the offence against the accused in compliance with the provisions of Section 339B of the Code of  Criminal  Procedure  for  holding  the  trial  in  absentia. Thereafter, the learned Magistrate sent the case record to the learned Sessions Judge, Dhaka.

Subsequently,  the  learned  Sessions  Judge,  Dhaka transmitted  the  case  to  the  learned  Additional  District  and Sessions  Judge,  7th  Court,  Dhaka  which  was  registered  as Sessions Case No.2322 of 2019. The charge was framed under Section 138 of the Negotiable Instruments Act, 1881(the Act, 1881) against the accused. At the time of framing of the charge the  accused  remained  absconding.  In  course  of  trial,  the prosecution examined 02(two) witnesses whereas the defence examined none. The examination of the accused under Section 342 of the Code of Criminal Procedure could not be held as he remained absconding. The trial was held in absentia.

Upon conclusion of the trial, hearing the complainant, the learned Additional District and Sessions Judge, 7th Court, Dhaka  convicted  the  accused  under  Section  138  of  the Negotiable Instruments Act, 1881 and sentenced him to suffer rigorous imprisonment for 06 (six) months and to pay a fine of Taka 13,00,000/- by judgment and order dated 28.02.2021.

Being aggrieved by and dissatisfied with judgment and order  dated  28.02.2021,  the  convict  preferred  the  instant Criminal Appeal having deposited Taka 6,50,000/- before the Court  below  through  Treasury  Chalan  on  20.04.2025.  This Court enlarged the appellant on bail till disposal of the appeal

on 26.05.2025.

Mr. Md. Asmall Bin Alam (Mithu), the learned Advocate appearing on behalf of the appellant submits that the appellant does not dispute the issuance of the cheque but owing to severe financial  hardship,  he  could  not  make  the  payment  of  the cheque  amount  following  receipt  of  the  notice  sent  by  the complainant after dishonour of the cheque. He highlights that the appellant has already deposited Taka 6,50,000/- before the

trial  Court  through  T.R.  Chalan  equivalent  to  50%  of  the dishonoured cheque amount.

He  further  submits  that  the  appellant  is  currently  in financial  hardship  and  hence  he  prays  for  an  extension  of 06(six) months to clear the remaining dues. Finally, he prays for the appeal to be allowed with necessary modification.

Per contra, Mr. Mohammad Abdul Aziz Talukder, the learned Advocate appearing on behalf of the respondent Nos. 2(a), 2(b) and 2(c) submits that the respondent No. 2 died on 03.08.2021 left behind his legal heirs one wife, one son, one daughter. On 03.03.2026 they were substituted as respondent no. 2(a) to 2(c) by this Court and they have been suffering severe financial hardship.

He further submits that there is no illegality, impropriety or infirmity in the impugned judgment and order. He contends that  the  prosecution  successfully  proved  all  the  legal ingredients  required  under  Section  138  of  the  Negotiable Instruments Act, 1881. The trial Court rightly convicted the accused and sentenced him to suffer imprisonment. Finally, he prays for the dismissal of the appeal.

I  have  considered  the  submissions  of  the  learned Advocates  for  both  sides,  perused  the  evidence,  impugned judgment and order passed by the trial Court and the materials on record.

Upon careful scrutiny of the evidence, this Court finds that  the  accused  issued  cheque  No.  CD/A  2392448  dated 01.12.2017  in  favour  of  the  complainant  for  Taka  13,00,000/- towards discharge of a legally enforceable liability. The cheque when presented within its period of validity was dishonoured by the drawee bank.

The  record  shows  that  the  complainant  has  duly complied with the procedures laid down in Section 138 of the Act, 1881 in filing the case. The case was filed within one month of the date on which the cause of action had arisen under  clause  (c)  of  the  proviso  to  Section  138.  The complainants as PW1 and PW2 proved consideration against which the cheque was drawn and that it is the holder of the cheque  in  due  course.  PW1  identified  the  signature  of  the accused  on  the  cheque  in  question  and  the  same  remained unchallenged. The Court below righty arrived at the finding that the appellant guilty of the charge. Hence, the impugned judgment and order of conviction does not suffer from any illegality, impropriety or infirmity.

However, with regard to the sentence, reliance may be placed upon the decision passed in  Aman Ullah Vs. State, reported in 73 DLR (2021) 541, wherein it has been held that the sentence of imprisonment in the case of cheque dishonour would be a harsh sentence having no penal objective to be achieved. I respectfully concur with the principle enunciated therein.

Considering the facts and circumstances of the case, this Court is of the view that the ends of justice would be best served if the substantive sentence of imprisonment is modified by setting aside the term of imprisonment.

In view of the foregoing discussions and the principle laid down in the aforesaid decision, the order of the Court is as follows:

The conviction of the appellant under Section 138 of the Negotiable  Instruments  Act,  1881  is  hereby  affirmed. However, the substantive sentence of 06(six) months’ rigorous imprisonment  is  set  aside.  The  sentence  of  fine  of  Taka

13,00,000/- is upheld. It appears that the convict-appellant has already deposited 50% of the cheque amount before the trial Court  prior  to  filing  the  appeal.  The  Court  concerned  is directed  to  disburse  the  said  deposited  money  to  the complainant-respondent Nos. 2(a), 2(b) and 2(c) forthwith. The convict-appellant is directed to pay the remaining portion of the  value  of  the  dishonoured  cheque  to  the  complainant- respondent Nos. 2(a), 2(b) and 2(c) through the trial Court within 04 (four) months from the date of receipt of this order, in  default  he  will  suffer  simple  imprisonment  for  01(one) month. If the convict-appellant does not pay the remaining portion of the fine as ordered or opts to serve out the period of imprisonment in lieu of payment of fine, he is not exempted from paying the same. In that event, the Court concerned shall recover the fine under the provisions of Section 386 of the Code of Criminal Procedure.

In  the  result,  the  Criminal  Appeal  is  dismissed  with modification of sentence and with directions made above. The convict-appellant is released from his bail bond.

Send down the lower Court’s records (LCR) at once. Communicate the judgment and order to the Court concerned forthwith.

(Md. Bashir Ullah, J)

Md. Ariful Islam Khan

Bench Officer