High Court Division :
(Criminal Appellate Jurisdiction)
Md Rais Uddin J
Mohiuddin Chowdhury (Md) ……………… Accused-Appellant
vs State and another………………….Respondents
Judgment
February 28th, 2018
Negotiable Instruments Act (XXVI of 1881)
Sections 138(1) and 141
Certain conditions precedent are stipulated in the provision of Section 138(1) of the Act which are to be complied with before imposing any criminal liability to the drawer. From the scheme of the Act, it is clear that following the dishonour of cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact that the cheque has been issued for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. …….(14)
None appears -For the Accused-Apellant.
Md Jainul Abedin (Sajib), Advocate-For the Complainant. Respondent
Shafiul Bashar Bhandary DAG with Sayeda Sabina Ahmed (Molly), AAG -For the State.
Judgment
This appeal is directed against the judgment and order of conviction and sentence dated 20-8-2015 passed by the learned Sessions Judge and Special Tribunal-I, Cox’s Bazar in ST Case No. 1014 of 2015 arising out of CR Case No. 866 of 2014, convicting the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 1 (one) year and to pay a fine of Taka 30,00,000 (thirty lacs) only.
2. The prosecution case, in short, is that the respondent Md. Harunur Rashid being complainant filed the CR case No. 866 of 2014 before the learned Senior Judicial Magistrate Court-04, Cox’s Bazar against the accused-appellant under Section 138 of the Negotiable Instrument Act, 1881 alleging inter alia that the accused-appellant issued three cheques to the respondent for paying his unpaid amount Taka 15,00,000 (fifteen lacs) at different times. The said three cheques Nos. are (1) IBE-7481376, Saving Account No. 4705, dated on 15-12-2013 and the amount of Taka 7,00,000 (seven lacs), (2) IBE-7481377, Saving Account No. 4705, dated on 20-12-2013 and the amount of Taka 5,00,000 (five lacs), (3) IBE-7481378, Saving Account No. 4705, dated on 30-12-2013 and the amount of Taka 3,00,000 (three lacs), lslami Bank Bangladesh Limited, Cox’s Bazar Branch, Cox’s Bazar, in total amount of Taka 15,00,000 (fifteen lacs) only. Thereafter, the complaint deposited the cheques on 12-6-2014 for encashment to the concerned bank namely lslami Bank Bangladesh Limited, Cox’s Bazar Branch, Cox’s Bazar, which was dishonoured due to insufficient of fund. The complainant sent legal notice on 19-6-2014 to the accused-appellant through his engaged lawyer with registered post and published in the Daily Cox’s Bazar. But the accused-appellant did not take any step to pay the money. Hence, the case.
3. Upon receipt the petition of complaint the learned Senior Judicial Magistrate, Cox’s Bazar examined the complainant under Section 200 of the Code of Criminal Procedure and took cognizance against the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881.
4. The case record was transmitted to the learned Sessions Judge, Cox’s Bazar where it was registered as Sessions Trial No. 1014 of 2015. The learned Sessions Judge framed charge against the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 in absence of the accused-appellant.
5. At the trial, the prosecution has examined as many as 2 (two) witnesses while the defence examined none in support of their respective cases.
6. On conclusion of trial the learned Judge of the trial court considering the evidence and materials on record found the accused-appellant guilty under Section 138 of the Negotiable Instruments Act and sentenced him as stated above.
7. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the accused-appellant preferred the instant appeal.
8. This matter has been appearing in the daily cause list with the name of the learned advocates for the accused-appellant as well as the complainant-respondent but no one appears on behalf of the accused-appellant to press the appeal. So, this matter is taken up for hearing.
9. Mr. Md. Jainul Abedin (Sajib), the learned Advocate appearing for the complainant-respondent has placed the memo of appeal, petition of complaint, evidence, judgment of the trial court and submits that prosecution has been able to prove the case by adducing independent, neutral witnesses as to issuance of cheque by the accused-appellant which was dishonoured for insufficient of fund, a legal notice was served upon the accused-appellant but the accused-appellant failed to make any arrangement to pay the money and, as such, the learned Judge of the trial court rightly found the accused-appellant guilty and sentenced him and therefore, he prayed for dismissed the appeal.
10. Mrs. Sayeda Sabina Ahmed (Molly), learned Assistant Attorney General appearing for the State has supported the contention of the learned advocate for the complainant-respondent.
11. I have gone through the memo of appeal, petition of complaint, evidence, judgment of the trial court and other materials on record very carefully.
12. On perusal of the record it appears that the accused-appellant issued three cheques of Taka 7,00,000 (seven lacs) on 15-12-2013, Taka 5,00,000 (five lacs) on 20-12-2013 and Taka 3,00,000 (three lacs) in total Taka 15,00,000 (fifteen lacs) in favour of the complainant. The complainant deposited the cheques for encashment which were dishonoured for insufficient of fund. The complainant issued legal notice upon the accused-appellant through his engaged lawyer on 19-6-2014 by registered with AID and the legal notice also published in ‰`wbK K·evRvi on 20-6-2014 informing him that cheques have been dishonoured which were issued by him but accused-appellant did not take any step to pay the money.
13. On perusal of the record it appears that the prosecution examined the complainant as PW 1 who categorically stated the case of the prosecution as to issuance of cheques by the accused-appellant which were dishonoured for insufficient of fund. The complainant issued legal notice upon the accused-appellant to pay the money and exhibited his cheques, registered receipt, legal notice and dishonoured slip marked as exhibit- 1-6 series.
14. On perusal of the relevant provisions of Jaw it appears that, certain conditions precedent are stipulated in the provision of Section 138(1) of the Act which are to be complied with before imposing any criminal liability to the drawer. From the scheme of the Act, it is clear that following the dishonour of cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact the chelque has been issued for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. When the reason for return of the cheque has been mentioned as ‘refer to drawer’ or ‘insufficiency of fund’, it is primary duty of the drawer of the cheque to make payment of the amount within stipulated time from the receipt of notice.
15. On perusal of the record it appears that the accused-appellant issued three cheques of Taka 15,00,000 (fifteen lacs) which were dishonoured for insufficient of fund and the complainant filed the instant case for realisation of Taka 15,00,000 (fifteen lacs). 1 am of the view that justice will be met if the sentence of fine Taka 30,00,000 (thirty lacs) of the accused-appellant is reduced to Taka 15,00,000 (fifteen lacs) the cheque amount only and imprisonment for a period of l (one) year is reduced for a period of 1(one) month. Accordingly, the judgement and order of conviction and sentence is upheld by reducing the sentence of imprisonment as well as fine as stated above.
16. In view of the discussions and reasons stated above, I find no merit in the appeal.
17. In the result, the appeal is dismissed with modification of sentence of imprisonment for a period of 1 (one) month and fine of Taka 15,00,000 (fifteen lacs) the cheque amount only.
18. The impugned judgment and order of conviction and sentence dated 20-8-2015 passed by the learned Sessions Judge and Special Tribunal-1, Cox’s Bazar in ST Case No. 1014 of 2015 arising out of CR Case No. 866 of 2014, convicting the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 01(one) year and to pay a fine of Taka 30,00,000 (thirty lacs) only is dismissed with modification as stated above.
19. The accused-appellant is directed to deposit the balance amount of cheques to the trial court within 45 days from the date of received of this judgment along with subordinate court records to be paid to the complainant in accordance with law.
20. The accused-appellant IS further directed to surrender before the trial court within 60 days from the same date for serving the remaining sentence of imprisonment, as per jail code, if so required.
21. The complainant-respondent is allowed to withdraw the 50% of the cheque amount which has been deposited by the accused-appellant in the trial Court through Chalan at the time of filing appeal within 1 (one) month from the date of receipt of this judgment.
Let the Sub-ordinate Court Records along with a copy of this judgment be sent to the Court below at-once.
(Criminal Appellate Jurisdiction)
Md Rais Uddin J
Mohiuddin Chowdhury (Md) ……………… Accused-Appellant
vs State and another………………….Respondents
Judgment
February 28th, 2018
Negotiable Instruments Act (XXVI of 1881)
Sections 138(1) and 141
Certain conditions precedent are stipulated in the provision of Section 138(1) of the Act which are to be complied with before imposing any criminal liability to the drawer. From the scheme of the Act, it is clear that following the dishonour of cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact that the cheque has been issued for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. …….(14)
None appears -For the Accused-Apellant.
Md Jainul Abedin (Sajib), Advocate-For the Complainant. Respondent
Shafiul Bashar Bhandary DAG with Sayeda Sabina Ahmed (Molly), AAG -For the State.
Judgment
This appeal is directed against the judgment and order of conviction and sentence dated 20-8-2015 passed by the learned Sessions Judge and Special Tribunal-I, Cox’s Bazar in ST Case No. 1014 of 2015 arising out of CR Case No. 866 of 2014, convicting the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 1 (one) year and to pay a fine of Taka 30,00,000 (thirty lacs) only.
2. The prosecution case, in short, is that the respondent Md. Harunur Rashid being complainant filed the CR case No. 866 of 2014 before the learned Senior Judicial Magistrate Court-04, Cox’s Bazar against the accused-appellant under Section 138 of the Negotiable Instrument Act, 1881 alleging inter alia that the accused-appellant issued three cheques to the respondent for paying his unpaid amount Taka 15,00,000 (fifteen lacs) at different times. The said three cheques Nos. are (1) IBE-7481376, Saving Account No. 4705, dated on 15-12-2013 and the amount of Taka 7,00,000 (seven lacs), (2) IBE-7481377, Saving Account No. 4705, dated on 20-12-2013 and the amount of Taka 5,00,000 (five lacs), (3) IBE-7481378, Saving Account No. 4705, dated on 30-12-2013 and the amount of Taka 3,00,000 (three lacs), lslami Bank Bangladesh Limited, Cox’s Bazar Branch, Cox’s Bazar, in total amount of Taka 15,00,000 (fifteen lacs) only. Thereafter, the complaint deposited the cheques on 12-6-2014 for encashment to the concerned bank namely lslami Bank Bangladesh Limited, Cox’s Bazar Branch, Cox’s Bazar, which was dishonoured due to insufficient of fund. The complainant sent legal notice on 19-6-2014 to the accused-appellant through his engaged lawyer with registered post and published in the Daily Cox’s Bazar. But the accused-appellant did not take any step to pay the money. Hence, the case.
3. Upon receipt the petition of complaint the learned Senior Judicial Magistrate, Cox’s Bazar examined the complainant under Section 200 of the Code of Criminal Procedure and took cognizance against the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881.
4. The case record was transmitted to the learned Sessions Judge, Cox’s Bazar where it was registered as Sessions Trial No. 1014 of 2015. The learned Sessions Judge framed charge against the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 in absence of the accused-appellant.
5. At the trial, the prosecution has examined as many as 2 (two) witnesses while the defence examined none in support of their respective cases.
6. On conclusion of trial the learned Judge of the trial court considering the evidence and materials on record found the accused-appellant guilty under Section 138 of the Negotiable Instruments Act and sentenced him as stated above.
7. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the accused-appellant preferred the instant appeal.
8. This matter has been appearing in the daily cause list with the name of the learned advocates for the accused-appellant as well as the complainant-respondent but no one appears on behalf of the accused-appellant to press the appeal. So, this matter is taken up for hearing.
9. Mr. Md. Jainul Abedin (Sajib), the learned Advocate appearing for the complainant-respondent has placed the memo of appeal, petition of complaint, evidence, judgment of the trial court and submits that prosecution has been able to prove the case by adducing independent, neutral witnesses as to issuance of cheque by the accused-appellant which was dishonoured for insufficient of fund, a legal notice was served upon the accused-appellant but the accused-appellant failed to make any arrangement to pay the money and, as such, the learned Judge of the trial court rightly found the accused-appellant guilty and sentenced him and therefore, he prayed for dismissed the appeal.
10. Mrs. Sayeda Sabina Ahmed (Molly), learned Assistant Attorney General appearing for the State has supported the contention of the learned advocate for the complainant-respondent.
11. I have gone through the memo of appeal, petition of complaint, evidence, judgment of the trial court and other materials on record very carefully.
12. On perusal of the record it appears that the accused-appellant issued three cheques of Taka 7,00,000 (seven lacs) on 15-12-2013, Taka 5,00,000 (five lacs) on 20-12-2013 and Taka 3,00,000 (three lacs) in total Taka 15,00,000 (fifteen lacs) in favour of the complainant. The complainant deposited the cheques for encashment which were dishonoured for insufficient of fund. The complainant issued legal notice upon the accused-appellant through his engaged lawyer on 19-6-2014 by registered with AID and the legal notice also published in ‰`wbK K·evRvi on 20-6-2014 informing him that cheques have been dishonoured which were issued by him but accused-appellant did not take any step to pay the money.
13. On perusal of the record it appears that the prosecution examined the complainant as PW 1 who categorically stated the case of the prosecution as to issuance of cheques by the accused-appellant which were dishonoured for insufficient of fund. The complainant issued legal notice upon the accused-appellant to pay the money and exhibited his cheques, registered receipt, legal notice and dishonoured slip marked as exhibit- 1-6 series.
14. On perusal of the relevant provisions of Jaw it appears that, certain conditions precedent are stipulated in the provision of Section 138(1) of the Act which are to be complied with before imposing any criminal liability to the drawer. From the scheme of the Act, it is clear that following the dishonour of cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact the chelque has been issued for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. When the reason for return of the cheque has been mentioned as ‘refer to drawer’ or ‘insufficiency of fund’, it is primary duty of the drawer of the cheque to make payment of the amount within stipulated time from the receipt of notice.
15. On perusal of the record it appears that the accused-appellant issued three cheques of Taka 15,00,000 (fifteen lacs) which were dishonoured for insufficient of fund and the complainant filed the instant case for realisation of Taka 15,00,000 (fifteen lacs). 1 am of the view that justice will be met if the sentence of fine Taka 30,00,000 (thirty lacs) of the accused-appellant is reduced to Taka 15,00,000 (fifteen lacs) the cheque amount only and imprisonment for a period of l (one) year is reduced for a period of 1(one) month. Accordingly, the judgement and order of conviction and sentence is upheld by reducing the sentence of imprisonment as well as fine as stated above.
16. In view of the discussions and reasons stated above, I find no merit in the appeal.
17. In the result, the appeal is dismissed with modification of sentence of imprisonment for a period of 1 (one) month and fine of Taka 15,00,000 (fifteen lacs) the cheque amount only.
18. The impugned judgment and order of conviction and sentence dated 20-8-2015 passed by the learned Sessions Judge and Special Tribunal-1, Cox’s Bazar in ST Case No. 1014 of 2015 arising out of CR Case No. 866 of 2014, convicting the accused-appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 01(one) year and to pay a fine of Taka 30,00,000 (thirty lacs) only is dismissed with modification as stated above.
19. The accused-appellant is directed to deposit the balance amount of cheques to the trial court within 45 days from the date of received of this judgment along with subordinate court records to be paid to the complainant in accordance with law.
20. The accused-appellant IS further directed to surrender before the trial court within 60 days from the same date for serving the remaining sentence of imprisonment, as per jail code, if so required.
21. The complainant-respondent is allowed to withdraw the 50% of the cheque amount which has been deposited by the accused-appellant in the trial Court through Chalan at the time of filing appeal within 1 (one) month from the date of receipt of this judgment.
Let the Sub-ordinate Court Records along with a copy of this judgment be sent to the Court below at-once.