High Court Division
(Criminal Appellate Jurisdiction)
ANM Bashir Ullah J
Mohammad Ali Fatik……….
………….Convict-Appellant
vs
State and another ………..
………………… Respondents
Judgment
January 30th, 2014.
Negotiable Instruments Act (XXVI of 1881)
Section 138
The cheque was drawn some time in 2004 and it was presented in the Bank in the month of September, 2007 i.e. beyond the period of six months from the date on which it was drawn. A cheque receiving in the year 2004 filling up the various columns later on, at the sweet will of the complainant, if presented in the Bank after a long gap of 3/4 years, undoubtedly the same is a fraud upon the drawer of the cheque and if Court allow to continue such practice, that would be sheer indulgence to the creditors to be more oppressive to the debtors. . ….. (21)
Taher N. Khambat vs Vinayak Enterprises (AP), Company Cases, Vol 86, 1996 Page 471 to 477 ref.
Majedul Islam Patwary, Advocate-For the Convict-Appellant.
Md. Ashaque Momin with Salma Rahman, AAG-For the Respondent No.1
AKM Faiz with Md Sultan Uddin, Advocate-For the Respondent No.2
Judgment
This criminal appeal at the instance of the convict appellant under Section 410 of the Code of Criminal Procedure (in short the Code) is directed against the judgment and order dated 2-2-2011 passed by the Sessions Judge, Bogra in Sessions Case No. 50 of 2009 arising out of CR Case No. 59/C of 2007 dated 12-11-2007 under Section 138 of the Negotiable Instruments Act, 1881 (in short, the NI Act) Convicting the appellant under the said section of law sentencing him to suffer imprisonment for l (one) year and to pay fine of Taka 14,30,000 (fourteen lakhs thirty thousand).
2. The facts relevant for disposal of the appeal, in short, is that Md Sohel-bin-Anwar as complainant (respondent No.2 in this appeal) filed a petition of complaint in the Court of Magistrate, Bogra under Section 138 of the NI Act alleging, inter-alia, that he is a businessman of machineries part at Bogra town. Accused Mohammad Ali Fatik is a man of dubious character who is also a businessman of same type of goods at Natore town having a shop in the name and style as “Messers Shova Machineries”.
3. The accused used to purchase machinery parts from the complainant in cash and the same build a fiduciary relation between them for the ongoing business transactions. Thereafter, the accused requested him to sell the parts to him on credit and at one stage there was a due of Taka 7,16,300 to the accused till 17-4-2007. On the repeated pressure of the complainant the accused drew a cheque for Taka 7,15.000 in favour of the complainant being Cheque No. IBC 2320562 of his account No 0006686, Islami Bunk Bangladesh Limited. Natore Branch, Natore in order to make payment of the said amount. The complainant presented the said cheque in his amount at Islami Bank Bangladesh Limited. Borga, but for insufficiency of fund the cheque was bounced on 19-92007 by the Islami Bank Bangladesh Limited, Natore and ultimately a certificate to that effect was issued in favour of the complainant by the Islami Bank Bangladesh Limited, Bogra on 23-92007. The complainant through his lawyer issued legal notice on 3-10-2007 requesting the accused for making payment of the cheque value and though he received the notice on 4-10-2007 but all in vain and under this compelling circumstances the complaint filed the petition of complaint on 12-11-2007.
4. On the basis of the aforementioned petition of complaint CR Case No. 59C of 2007 was started and the case was ultimately tried by the Sessions Judge, Bogra who framed charge under section 138 of the NI Act on 27-7-2009 against the accused. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
5. The prosecution examined 2 witnesses and submitted some papers which have been marked as exhibits 1 to 3 series. After conclusion of recording of evidence, the accused was examined under section 342 of the Code when he repeated his innocence and submitted written statements disclosing his defence case.
6. The defence case as it appears from the cross-examination of the PWs 1 and 2 and also from the statements under section 342 of the Code is the case of innocence, false implication and non-issue of any cheque for payment of the amount.
7. The further defence case is that he started business transaction with the ccmplai’1ant in 2004. The complainant proposed him to purchase goods from his shop either in cash or on credit subject to deposit a signed blank cheque as security of the arrear transaction and the accused being convinced of the said proposal in good faith drew a signed blank cheque on 26-9-2004 being cheque No. 2320562 of Islami Bank Bangladesh Limited. Natore. All the entries of the cheque was blank save and except of his signature on the cheque and he was funning his business with the complainant smoothly but at one stage when the complainant was charging the higher rate of the goods than that of the market rate, he started to purchase tile. goods from other shops. He unsuccessfully requested the complainant to return back the blank cheque to him but the complainant being annoyed of it filling up the blank entries of the cheque showing an amount of Taka 7,15,000 filed this case. The accused did not draw any cheque for the payment of Taka 7,15,000 on 2-9-2007 in favour of the complainant.
8. The trial Court on consideration of the evidence and other materials on record convicted the appellant sentencing him as aforesaid and the convict appellant being aggrieved by and dissatisfied with the impugned judgment and the order of conviction and sentence preferred this appeal.
9. Mr Majedul Islam Patwary, the learned Advocate appearing for the convict appellant submits that since the convict appellant did not draw any cheque for payment of any amount to the complainant. the occurrence of this case did not at all attract the provisions of section L.8 of the NI Act. He referring the sub-section (1) of section 138 of the NI Act categorically submits that when a cheque is drawn for the payment of any amount of money to another person and when such cheque is dishonoured for insufficiency of fund, that is an offence under section 138 of the NI Act, but in this particular case it would be revealed from the materials on record that in the year of 2004 when the complainant started business transaction with the complainant handed over a signed blank cheque to the complainant as security for the transaction but since the appellant found it difficult to purchase the goods from the shop of the complainant, he (complainant) being annoyed of the said fact filling up the various entries of the cheque showing an imaginary amount presented the cheque to the bank on 2-9-2007.
10. He further submits that the various entries of the cheque have been made by his Manager and the same has been evident from the evidence of PW1 in a very good manner. He also submits that this Court called for a report from, the Islami Bank Bangladesh Limited, Bogra as to when the cheque in question was issued to the appellant and the Bank in its report dated 5-72012 stated that the cheque in question was given to the accused on 27-5-2004. The report also lends a strong and logical support to the defence case.
11. He further submits that the trial Court being seriously misconceived of the facts as well as law connected with till, occurrence of this case fails to appreciate the defence case and thereby wrongly applied the provisions of section 138 of the NI Act in the instant case. The trial Court should have found that when a blank cheque is drawn by a person to another person, the intention of making payment of money is found much absent there. So, bouncing of such a cheque did not attract the provision of section 138 of the NI Act. The learned Advocate in support of his such contention referred the case of Taher N Khambat vs Vinayak Enterprises (AP) reported in Company Cases, Vol-86,1996, Page 471 to 477.
12. On the other hand, Mr AKM Faiz, the learned Advocate with Mr Md Sultan Mahmud appealing for the respondent No.2 (complainant of the original case) and Mr Md Ashaque Momin with Mrs Salma Rahman, the learned Assistant Attorney Generals appearing for the respondent No. I almost in a chorus voice controverting the submissions made by the learned Advocate for the appellant and supporting the judgment of the trial Court submits that the cheque in junction was drawn by the accused in the due course of normal business transaction in order to make a payment of Taka 7,15,000 on 2-9-2007 and the cheque was presented within the stipulated period of time in the Bank for its encashment but due to insufficiency of fund the same was bourced on 23-92007 and in response to a legal notice, the accused did not turn up to make the payment is a result the complainant under the compelling circumstances filed the case. The trial Court on the right assessment of the evidence and other materials on record very legally held that the convict-appellant committed an offence punishable under section 138 of the NI Act for not making the arrangement to honour the cheque in question. So, the judgment of the trial Court did not call for interference from this Court.
13. I have considered the above submissions and the arguments of the learned Advocates of Nth the parties with profound attention and have gone through the materials on record.
14. The gist of the prosecution case is that the accused as a debtor in order to make payment of Taka 7,15,000 drew a cheque on 2-9-2007 in favour of the complainant and the complainant as payee of the cheque presented the same for encashment in the Bank but the same was dishonoured on 23-9-2007.
15. On the other hand, the defence case is that the accused did not draw any cheque on 2-9-2007 to its so-called payee in order to make payment of any amount. Rather, he deposited a signed blank cheque to the complainant in the year of 2004 when he started business transaction with in but whenever he was purchasing goods from other shops of Bogra, the complainant being annoyed of it filling up the entries of the cheque by his own man presented the same in the Bank in order to invoke the penal provisions of section 138 of the NI Act.
16. On a careful scrutiny of the evidence on record it appears that PW 1 Mohammad Sohel-bin-Anwar (the complainant of the case) in his cross-examination in a very clear language admitted that the name of the firm and the amount of money and the date on cheque has been written by his manager. The said evidence is running in the wing ways:
Avmvgx 2004 mv‡jiI Av‡M †_‡K Avgvi mv‡_ e¨emvwqK †jb †`b K‡i| mf¨ †h, †P‡K dv‡g©I bvg I UvKvi AsK Avgvi g¨v‡bRv‡ii †jLv| mZ¨ †h †P‡Ki ZvwiL I g¨v‡bRv‡ii †jLv…
17. The above evidence of PW 1 is perhaps more than enough to come to a very sound and invulnerable conclusion that when the cheque was issued by the accused it was a blank cheque having his signature on it only and it was issued by him without filling up the other required columns or entries of the cheque. Thus, the defence case stands on a very good and steady proof that he had handed over a blank cheque to the complainant.
18. There appears a report dated 5-7-2012 furnished by the Islami Bank Bangladesh Limited, Natore Branch, Natore in compliance with the direction of this Court’s order dated 116-2012 wherein the Bank authority also stated that the cheque in question was issued to the accused in the year of 2004. This report lends a strong support to the defence case that the cheque was given to the complainant much earlier than that of 2007.
19. Now, if this is the situation that a blank cheque having signature of the accused was given to the complainant by the accused what may be the consequence or fate of the same. In this connection sub-section (1) of section 138 of the NI Act is very much important to examine the fate of such a cheque. Sub-section (1) of section 138 runs as follows:
“138. Dishonour of cheque for insufficiency, etc of funds in the account-
(1)Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficiency to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to thrice the amount of the cheque, or with both”
20. The underlined portion (the underline is mine) of the above quoted section is going to show that when a cheque is drawn by the drawer of the cheque for payment of any amount of money to another person and when the cheque is bounced for insufficiency fund, then it is an offence punishable under section 138 of the NI Act, but whenever a cheque is drawn or given by an accused to another person without writing the amount and dates, such a cheque cannot be cnnsidered as a cheque drawn or issued for making payment of any amount. Had there been any legal and fair intention for making of payment or any amount of the drawer of the cheque that must be notified on the cheque. In this particular case, I find that the amount, dates and other entries has been written on the cheque by an agent of the complainant. So, it is very much clear from the materials on record that the accused did not draw the cheque for making payment of any amount through the cheque in question. So, the occurrence of this case did not attract the provisions of section 138 of the NI Act.
(To be continued)
