IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Mamnoon Rahman

Criminal Appeal No. 6718 of 2015

Md. Aminur Islam

                                                         ........Convict-appellant

                 -VERSUS-

The State and another

.…... Respondents

None appears

…… For the appellant Mr. Mohammad Taifoor Kabir, DAG with

Mr. Md. Lokman Hossain, AAG

Mr. Md. Hatem Ali, AAG

…… For the respondent No. 1 Mr. Md. Najmul Huda, Advocate

…… For the respondent No. 2 Judgment on 20th May, 2024

In the instant appeal, the convict-appellant has challenged the legality of the judgment and order of conviction and sentence dated 30.04.2015 passed by the learned Sessions Judge Court, Gaibandha in Sessions Case No. 08 of 2015 arising out of C.R. Case No. 258 of 2014  convicting  the  convict-appellant  under  section  138  of  the Negotiable  Instruments  Act,  1881  and  sentencing  him  to  suffer simple imprisonment for a period of 6(six) months and to pay fine of Tk. 4,00,000/-.

Md.  Abu  Bakkar  Siddique  is  the Complainant-Respondent No. 2.

None appeared for the convict-appellant when the appeal is called on for hearing.

Mr. Md. Najmul Huda, learned Advocate appearing for the complainant-respondent  No.  2,  submits  that  the  charge  brought against the convict-appellant under section 138 of the Negotiable Instruments Act, 1881 (in short, ‘the Act, 1881’) has been proved beyond reasonable doubt and therefore, the appeal is liable to be dismissed.

I  have  heard  the  learned  counsel  of  the  complainant- respondent no. 2, perused the petition of appeal of the convict- appellant and the materials on record.

It appears from the petition of complaint, the deposition of PW1(complainant) and PW 2 as well as the documentary evidences that the convict-appellant issued cheque in question in favour of the complainant-respondent  on  11.03.2014  for  repayment  of outstanding  amount  of  Tk.  2,00,000/-  which  he  took  from  the complainant.  The  value  of  the  cheque  is  Tk.  2,00,000/-.  It  was dishonoured by the bank concerned on 20.03.2014 and 19.5.2014 respectively. The complainant sent the statutory legal notice to the convict-appellant on 27.05.2014. The value of the cheque was not paid to the complainant. The case was filed on 30.06.2014. P.W.1 and P.W. 2 proved the prosecution case.

I have no hesitation to hold that the complainant-respondent has proved compliance of the procedure 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  complainant  also proved the consideration against which the cheque was drawn and that he is the holder of the cheque in due course. Hence, in my view, the impugned judgment and order of conviction does not suffer from any  illegality  or  infirmity.  The  Trial  Court  correctly  found  the appellant guilty of the charge.

Section 138 of the Act, 1881 provides that the offence of dishonour of cheque is punishable with imprisonment for a term which may extend to 1 (one) year, or with fine which may extend to thrice the amount of the cheque, or with both. Sub-section (2) of Section 138 provides, “Where any fine is realised under sub-section (1), any amount up to the face value of the cheque as far as is covered by the fine realised shall be paid to the holder”. Thus, the criminal proceeding under section 138 serves two purposes: firstly, to punish the offender and secondly, to recover the value of the cheque. The object of adding sub-section (2) to section 138 is to alleviate the grievance of the complainant. In the instant case, the value  of  the  dishonoured  cheque  is  Tk.  2,00,000/-  whereas  the convict-appellant  was  fined  Tk.  4,00,000/-  to  be  given  to  the complainant which requires interference. Hence, the sentence of fine is  modified  to  the  value  of  the  dishonoured  cheque  i.e.,  Tk. 2,00,000/- (two lac).

Now, I turn to the sentence of imprisonment. There can be no dispute in so far as the sentence of imprisonment is concerned that it should commensurate with the gravity of the offence. Court has to deal with the offenders by imposing proper sentence by taking into consideration the facts and circumstances of each case. It is not only the rights of the offenders which are required to be looked into at the time of the imposition of sentence, but also of the victims of the crime and society at large, also by considering the object sought to be achieved by the particular legislation. Considering the facts and circumstances of the case and the object of the law, I am of the view that the sentence of imprisonment would be a harsh sentence having no  penal  objective  to  be  achieved.  Hence,  the  sentence  of imprisonment is set aside.

I note that the trial court has not passed any default order i.e., imprisonment in default of payment of the fine. When an offender is sentenced to fine only, the Court has the power to make a default order under Section 388 of the Code of Criminal Procedure (in short the  ‘Cr.P.C.’).  Section  423(1)(d)  of  the  Cr.P.C.  empowers  the Appellate Court to pass any consequential or incidental order that may be ‘just and proper’. Since, this Court has already set aside the sentence of imprisonment, it would be just and proper to pass a default order.

In view of the foregoing discussions, the order of this Court is as follows:

The conviction of the appellant under section 138 of the Act, 1881  is  upheld,  but  the  sentence  is  modified.  The  sentence  of 06(six) months simple imprisonment is set aside. The sentence of fine of Tk. 4,00,000/- (four lac) is modified to Tk. 2,00,000/- (two lac) which is equivalent to the value of the dishonoured cheque. The convict-appellant has already deposited Tk. 1,00,000/- (one lac) in the Trial Court before filing the appeal. The Trial Court is directed to give the said deposited amount to the tune of Tk. 1,00,000/- (one lac)  to  the  complainant-respondent  No.2  forthwith.  The  convict- appellant is directed to pay the remaining portion of the value of the dishonoured  cheque  i.e.,  Tk.  1,00,000/-  (one  lac)  to  the complainant-respondent No. 3 within 3 (three) months from the date of  receipt  of  this  order,  in  default  he  will  suffer  simple imprisonment for 15(fifteen) days. 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 realise the fine under the provisions of Section 386 of the Cr.P.C.

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

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

(Mamnoon Rahman, J:)