High Court Division :
(Criminal Appellate Jurisdiction)
ANM Bashirullah J
Belal Uddin (Md) ……..
………….Convict-Appellant
vs
Md Lutfor Rahman
and another………
…………. Respondents
Judgment
January 27th, 2014.
Negotiable Instruments Act (XXVI of 1881)
Section 138
The amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a bigger amount not covered by the cheque, which was dishonoured the prosecution case must fail. …………(21)
Code of Criminal Procedure (V of 1898)
Section 342
Whenever any procedural matter is left out unintentionally by the Court through oversight but the prosecution and the defence could have easily and honestly brought it into the notice of the Court to avoid any sort of lacuna in the trial of a case. .. …. (23)
TCI Finance Ltd vs State of Andhra Pradesh and another Company Cases, Volume 124, 2005 Page 29-34; Wasiudddin @ Shamsu vs State 1984 BLD 170; Abdul Gafur @ Haji Abdul Gafur vs Jogesh Chandra Roy, 11 BLD (AD) 108=43 DLR (AD) 62 and AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana ref.
Md Zainul Hoque, Azizullah Emon and Fahmida Johra Rupa-For the Appellant.
Md Ashaque Momin, AAG-For the Respondent No.2.
Judgment
This criminal appeal, under Section 410 of the Code of Criminal Procedure (in short, the Code) is directed against the judgment and order dated 14-2-2007 passed by the Additional Metropolitan Sessions Judge, 4th Court, Chittagong in Sessions trial case No. 654 of 2006 convicting the appellant under section 138 of the Negotiable Instruments Act (in short, the NI Act) sentencing him to suffer imprisonment for a period of 6 (six) months and to pay a fine of Taka 800,000 (eight lakhs only).
2. The facts relevant for disposal of the appeal, in short, is that the respondent No.1 Alhaj Md Lutfor Rahman Chowdhury, as complaint, filed a petition of complaint in the Court of Chief Metropolitan Magistrate, Chittagong against the present appellant Md Belaluddin as sole accused alleging inter-alia that the accused in order to make payment’ of arrears drew a cheque for Taka 400,000 on 12-1-2006 in favour of the complainant being Standard Chartered Bank Cheque No. 1828542. The complainant as holder of the cheque presented the said cheque for encashing the cheque value on 28-5-2006 but the cheque was dishonoured by the bank for insufficient fund. Thereafter, the complainant also issued a legal notice tot he accused on 5-6-2006 requesting the accused for making payment of the cheque value but all in vain and the complainant under the said compelling circumstances filed the case against the accused.
3. On the basis of the said petition of complaint, the case was registered as CR case No. 239 of 2006 in the Court of Chief Metropolitan Magistrate, Chittagong. The accused-appellant appearing in the Court below sought bail and he was enlarged on bail and the case was ultimately tried by the Metropolitan Sessions Judge, 4th Court, Chittagong who framed charge against the accused under section 138 of the NI Act to which the accused pleaded him not guilty and claimed to be tried.
4. The prosecution examined one witness and submitted some documents which were duly marked as exhibits. After recording of evidence, the case was fixed on 22-1-2007 for examination of the accused under section 342 of the Code but since the accused did not appear on that date in the trial Court he could not be examined under Section 342 of the Code. Though on the following day on 23-1-2007 he appeared in the trial Court with a prayer for bail and ultimately though he was enlarged on bail but was not examined under section 342 of the Code. The trial Court on consideration of the evidence and other materials on record found him guilty under section 138 of the NI Act and awarded the sentence us stated earlier. The appellant thus depositing 50% amount of the cheque value preferred this appeal in this Court. On the date of admission of appeal on 5-3-2007, the appellant was granted bail for three months and the same was extended from time to time and later on till disposal of the appeal.
5. Md Ziaul Haque, the learned Advocate appearing for the appellant assailing the judgment, appealed against on two main grounds and submits that the cheque was presented by the holder of the cheque within the time of six months as provided in clause (a) of the proviso
to section 138 of the NI Act and the notice was also served within 30 days from the date of the bounce of the cheque as provided in clause (b) of the proviso to section 138 of the NI Act and the case was also filed within the fixed time as provided in section 138 and 141 of the NI Act but the judgment of the trial Court below is still liable to be set-aside on two main grounds.
6. He firstly submits that the holder of the cheque must make demand for the payment of the cheque value giving a notice to the drawer of the cheque as provided in clause (b) of the proviso to section 138 of the NI Act. But in this particular case the complainant through his lawyer issued a notice on 5-6-2006 demanding Taka 5,80,000 which is highly inconsistent with the prosecution case as well as with the provisions of law. So the trial Court should have considered that the notice was served in contravention of the statutory provision of law and secondly he submits that the accused was not examined under section 342 of the Code. So the judgment and order of the trial Court is liable to be set-aside.
7. On the other hand, Mr Md Ashaque Momin, the learned Assistant Attorney-General appearing for the respondent No. 2 and Mr Fariduddin Khan, the learned Advocate for the respondent No.1 opposing the appeal and supporting the judgment of the trial Court in a chorus voice submit that in the legal notice there was a figure of demand of Taka 5,80,000 but at the same time there was a clear statement that the cheque was drawn for Taka 4,00,000 and the said cheque was dishonoured. So the notice was served in compliance of the provision as required under clause(b) of the proviso to section 138 of the NI Act and for making the demand of another figure which is higher than that of the cheque value, the accused has not been prejudiced in any way. So that cannot materially affect the prosecution case as well as the judgment of the trial Court.
(To be continued)
8. They also submit that the case was fixed at trial on 22-1-2007 for the examination of the accused under section 342 of the Code but on that particular date the accused intentionally remained absent from appearing in the trial Court. As such, he was not examined under section 342 of the Code and for the fault of the accused, the prosecution cannot be deprived from the justice as neither the prosecution nor the Court had any laches in examining the accused under section 342 of the Code. The convict appellant willfully and deliberately remained absent on the scheduled date of his examination so that he could not be examined and a ground like this can be taken in the appeal. So, the convict appellant should not be given any reward and chance to enjoy the benefit his own fault and fraud.
9. They further submit that the convict appellant as drawer of the cheque had the scope to make payment of the cheque value in favour of the complainant on receipt of the legal notice dated 5-6-2006 but the accused appellant deliberately and intentionally had refrained from making the payment of cheque value to the complainant. Thus the trial Court very rightly and legally found him guilty under section 138 of the NI Act. So the judgment and order of conviction and sentence are liable to be upheld.
10. I have considered the above submissions and arguments of the learned Advocate of both the parties with profound attention and have gone though the materials on record.
11. The learned Advocate for the appellant in order to impeach the judgment of the trial Court assailed the judgment mainly on two grounds. His first ground is that notice as required to serve under clause (b) of the proviso to section 138 for the amount of the cheque value but was not given in compliance of the said provision of law rather it was given for a higher amount than that of the cheque value.
The second point of argument is that the accused was not examined under section 342 of the Code as such, the judgment and order of the trial Court are not maintainable in law.
12. In this case it is almost admitted that there was no wrong in presenting the cheque in the bank for encashment of the cheque value and the notice was served within the specific period and the case was filed by the complainant within the statutory period of time.
13. Now, let us examine the main arguments advanced by the learned Advocate for the appellant. The clause (b) of the proviso to section 138 runs us follows:
“(b) the payee or the holder in· due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
14. The under lining portion (the underline is mine) of the clause is going to show’ that notice is to be given for the amount of the cheque and not for any other amount and if notice is given other than the amount of the cheque value that is not a valid notice in compliance of the clause (b) of the proviso to section 138 of the NI Act. But I find from the record that in the notice though there had been a statement in respect of the cheque amount but ultimately the demand was made for Taka 5,80,000 which is not the cheque amount at all and it would be wise job for me to copy here the relevant portion of the demand from the notice exhibit 5. The clause 5 of the notice runs as follows:
5| me©‡kl Avcwb †bvwUk MÖnxZv D³ †bvwUk cÖvß nIqvi 7(mvZ) w`‡bi g‡a¨ Avgvi †gvqv‡°j gs UvKv 5,80,000 (cuvP jÿ Avwk nvRvi) UvKv cÖ`vb Kwi‡Z e¨_© nB‡j Avgvi †gvqv‡°j Avcbvi weiæ‡× negotiable Instrument Act Gi 138 aviv g‡Z weÁ Av`vj‡Z gvgjv `v‡qi Kwi‡Z eva¨ nB‡eb Ges Avgvi †gvqv‡°j D³ AvB‡bi eZ©gvb cÖwZKvi cÖv_©bv Kwi‡Z eva¨ nB‡eb|
15. From the above statements of the notice itself, it shows that the ultimate demand was made for Taka 5,80,000 which is inconsistent with the requirements of the law as provided in section 138 of the NI Act.
16. Now, the question before me what may be the consequence of this non-compliance of law noticed above. In this connection the learned Advocate for the appellant referring the case of TCI Finance Ltd vs State of Andhra Pradesh and another reported in company Cases, Volume 124, 2005 page 29-34 submits that while demanding payment by issuing a notice under clause(b) of the proviso to section 138, of the NI Act, the holder in due course of the cheque must demand for the payment of the amount covered by the cheque and if the demand is for lesser or for a higher amount not covered by the cheque which was dishonoured, then the prosecution must fail as the statutory requirement of section 138, proviso (b) is not fulfilled.
17. On going to the reported case it appears that for failure to serve a notice for the cheque value the prosecution case failed. The relevant findings of the reported case runs as follows:
“If the notice is either for lesser amount or for more amount than the amount covered by the cheque, it amounts to failure to fulfil all the technical formalities contemplated under section 138 of the Act, therefore, the respondent-accused herein cannot be prosecuted (page 33 of the judgment)
18. The learned Advocate for the appellant also referred the case of AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana. In this reported case the Supreme Court of India also took the same view as it was taken by the High Court of Andhra Pradesh. The Supreme Court of India in the judgment observed in the following manner:
“However, according to the respondent the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and nor the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount.”
19. The decisions taken in the reported cases in respect of notice demanding the payment of cheque amounts have a full manner application for the case in my hands.
20. In this regard, the learned Advocate for the respondent No. 2 taking me through the notice submits that though a higher amount was demanded through the notice but in the notice the cheque value was also demanded. So in that view of the matter there is no scope to say that the cheque value was not demanded through the notice to the convict appellant.
21. On a meticulous perusal of the notice in question (exhibit 5) it appears that there is a statement in respect of the cheque which was bounced in connection of the case but ultimately the demand was made for Taka 5,80,000 which will be evident from the notice portion of the notice which I have copied within this judgment hereinbefore. So, the notice in question cannot be considered as a notice demanding Taka 4,00,000 which was the cheque value rather notice was served demanding Taka 5,80,000 in flagrant violation of the provisions of section 138 of the NI Act. In the two cases of Indian jurisdiction as discussed earlier I find that they have formed a very strong and tight view that when notice is not served in compliance of the provision of law, the prosecution case must fail. In my consideration in demanding the payment of money by issuing a notice under clause (b) of the proviso to section 138 of the NI Act, the payee or the holder in due course of the cheque must demand and for the payment of the amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a big amount not covered by the cheque, which was dishonoured the prosecution case must fail as the statutory requirements of section 138 of the NI Act has not been fulfilled.
22. The next argument advanced by the learned Advocate for the appellant that since the convict appellant was not examined under section 342 of the Code the trial has been vitiated as a whole.
23. On going to the materials on record it appears that the case was fixed for examination of the accused on 22-1-2007 but on that day the convict appellant was found absent in the Court and accordingly the trial Court recorded an order noticing the absence of the accused that he could not be examined under section 342 of the Code due to his absence and the Court accordingly fixed the case for hearing of argument on 1-2-2007 but before that fixed date, the convict appellant appearing in the Court below on the following day on 23-1-2007 sought bail and he was again enlarged on bail. But neither the prosecution nor the defence answered sending back a case for retrial from the stage of examination under section 342 of the Code and in the case of Abdul Gafur @ Haji Abdul Gafur and others vs Jogesh Chandra Roy and another 11 BLD (AD) 108=43 DLR (AD) 62 the Appellate Division also taking the same view asked the trial Court for retrial from the stage of section 342 of the Code.
26. Having regards to the above citation I find that had it been a case before me that the judgment of the trial Court is at fault for the non-examination of the convict appellant under section 342 of the Code only, in that case, the case could be sent back on retrial from the stage of examination under Section 342 of the Code but as have found that for some other cogent reason as to the non-compliance of the provisions of clause (b) of the proviso to section 138 of the NI Act the conviction and sentence cannot be upheld. So, there appears no suitable reason for sending back the case on retrial to cure the lacuna taken place for non-examination of the accused under section 342 of the Code. Having regards to the above discussion find that the judgment and the order of conviction and sentence, appealed against, is not maintainable in the eye of law.
27. In the result, the appeal is allowed. The conviction and sentence passed on the convict appellant in Sessions case No. 654 of 2006 arising out of CR case No. 239 of 2006 of CMM Court Chittagong is hereby set-aside and the convict appellant it acquitted of the charge levelled against him. Let the appellant is allowed to withdraw the money deposited at the eve of filing this appeal.
Let a copy of the judgment be sent to the concerned Court along with the lower Courts record.
(Criminal Appellate Jurisdiction)
ANM Bashirullah J
Belal Uddin (Md) ……..
………….Convict-Appellant
vs
Md Lutfor Rahman
and another………
…………. Respondents
Judgment
January 27th, 2014.
Negotiable Instruments Act (XXVI of 1881)
Section 138
The amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a bigger amount not covered by the cheque, which was dishonoured the prosecution case must fail. …………(21)
Code of Criminal Procedure (V of 1898)
Section 342
Whenever any procedural matter is left out unintentionally by the Court through oversight but the prosecution and the defence could have easily and honestly brought it into the notice of the Court to avoid any sort of lacuna in the trial of a case. .. …. (23)
TCI Finance Ltd vs State of Andhra Pradesh and another Company Cases, Volume 124, 2005 Page 29-34; Wasiudddin @ Shamsu vs State 1984 BLD 170; Abdul Gafur @ Haji Abdul Gafur vs Jogesh Chandra Roy, 11 BLD (AD) 108=43 DLR (AD) 62 and AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana ref.
Md Zainul Hoque, Azizullah Emon and Fahmida Johra Rupa-For the Appellant.
Md Ashaque Momin, AAG-For the Respondent No.2.
Judgment
This criminal appeal, under Section 410 of the Code of Criminal Procedure (in short, the Code) is directed against the judgment and order dated 14-2-2007 passed by the Additional Metropolitan Sessions Judge, 4th Court, Chittagong in Sessions trial case No. 654 of 2006 convicting the appellant under section 138 of the Negotiable Instruments Act (in short, the NI Act) sentencing him to suffer imprisonment for a period of 6 (six) months and to pay a fine of Taka 800,000 (eight lakhs only).
2. The facts relevant for disposal of the appeal, in short, is that the respondent No.1 Alhaj Md Lutfor Rahman Chowdhury, as complaint, filed a petition of complaint in the Court of Chief Metropolitan Magistrate, Chittagong against the present appellant Md Belaluddin as sole accused alleging inter-alia that the accused in order to make payment’ of arrears drew a cheque for Taka 400,000 on 12-1-2006 in favour of the complainant being Standard Chartered Bank Cheque No. 1828542. The complainant as holder of the cheque presented the said cheque for encashing the cheque value on 28-5-2006 but the cheque was dishonoured by the bank for insufficient fund. Thereafter, the complainant also issued a legal notice tot he accused on 5-6-2006 requesting the accused for making payment of the cheque value but all in vain and the complainant under the said compelling circumstances filed the case against the accused.
3. On the basis of the said petition of complaint, the case was registered as CR case No. 239 of 2006 in the Court of Chief Metropolitan Magistrate, Chittagong. The accused-appellant appearing in the Court below sought bail and he was enlarged on bail and the case was ultimately tried by the Metropolitan Sessions Judge, 4th Court, Chittagong who framed charge against the accused under section 138 of the NI Act to which the accused pleaded him not guilty and claimed to be tried.
4. The prosecution examined one witness and submitted some documents which were duly marked as exhibits. After recording of evidence, the case was fixed on 22-1-2007 for examination of the accused under section 342 of the Code but since the accused did not appear on that date in the trial Court he could not be examined under Section 342 of the Code. Though on the following day on 23-1-2007 he appeared in the trial Court with a prayer for bail and ultimately though he was enlarged on bail but was not examined under section 342 of the Code. The trial Court on consideration of the evidence and other materials on record found him guilty under section 138 of the NI Act and awarded the sentence us stated earlier. The appellant thus depositing 50% amount of the cheque value preferred this appeal in this Court. On the date of admission of appeal on 5-3-2007, the appellant was granted bail for three months and the same was extended from time to time and later on till disposal of the appeal.
5. Md Ziaul Haque, the learned Advocate appearing for the appellant assailing the judgment, appealed against on two main grounds and submits that the cheque was presented by the holder of the cheque within the time of six months as provided in clause (a) of the proviso
to section 138 of the NI Act and the notice was also served within 30 days from the date of the bounce of the cheque as provided in clause (b) of the proviso to section 138 of the NI Act and the case was also filed within the fixed time as provided in section 138 and 141 of the NI Act but the judgment of the trial Court below is still liable to be set-aside on two main grounds.
6. He firstly submits that the holder of the cheque must make demand for the payment of the cheque value giving a notice to the drawer of the cheque as provided in clause (b) of the proviso to section 138 of the NI Act. But in this particular case the complainant through his lawyer issued a notice on 5-6-2006 demanding Taka 5,80,000 which is highly inconsistent with the prosecution case as well as with the provisions of law. So the trial Court should have considered that the notice was served in contravention of the statutory provision of law and secondly he submits that the accused was not examined under section 342 of the Code. So the judgment and order of the trial Court is liable to be set-aside.
7. On the other hand, Mr Md Ashaque Momin, the learned Assistant Attorney-General appearing for the respondent No. 2 and Mr Fariduddin Khan, the learned Advocate for the respondent No.1 opposing the appeal and supporting the judgment of the trial Court in a chorus voice submit that in the legal notice there was a figure of demand of Taka 5,80,000 but at the same time there was a clear statement that the cheque was drawn for Taka 4,00,000 and the said cheque was dishonoured. So the notice was served in compliance of the provision as required under clause(b) of the proviso to section 138 of the NI Act and for making the demand of another figure which is higher than that of the cheque value, the accused has not been prejudiced in any way. So that cannot materially affect the prosecution case as well as the judgment of the trial Court.
(To be continued)
8. They also submit that the case was fixed at trial on 22-1-2007 for the examination of the accused under section 342 of the Code but on that particular date the accused intentionally remained absent from appearing in the trial Court. As such, he was not examined under section 342 of the Code and for the fault of the accused, the prosecution cannot be deprived from the justice as neither the prosecution nor the Court had any laches in examining the accused under section 342 of the Code. The convict appellant willfully and deliberately remained absent on the scheduled date of his examination so that he could not be examined and a ground like this can be taken in the appeal. So, the convict appellant should not be given any reward and chance to enjoy the benefit his own fault and fraud.
9. They further submit that the convict appellant as drawer of the cheque had the scope to make payment of the cheque value in favour of the complainant on receipt of the legal notice dated 5-6-2006 but the accused appellant deliberately and intentionally had refrained from making the payment of cheque value to the complainant. Thus the trial Court very rightly and legally found him guilty under section 138 of the NI Act. So the judgment and order of conviction and sentence are liable to be upheld.
10. I have considered the above submissions and arguments of the learned Advocate of both the parties with profound attention and have gone though the materials on record.
11. The learned Advocate for the appellant in order to impeach the judgment of the trial Court assailed the judgment mainly on two grounds. His first ground is that notice as required to serve under clause (b) of the proviso to section 138 for the amount of the cheque value but was not given in compliance of the said provision of law rather it was given for a higher amount than that of the cheque value.
The second point of argument is that the accused was not examined under section 342 of the Code as such, the judgment and order of the trial Court are not maintainable in law.
12. In this case it is almost admitted that there was no wrong in presenting the cheque in the bank for encashment of the cheque value and the notice was served within the specific period and the case was filed by the complainant within the statutory period of time.
13. Now, let us examine the main arguments advanced by the learned Advocate for the appellant. The clause (b) of the proviso to section 138 runs us follows:
“(b) the payee or the holder in· due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
14. The under lining portion (the underline is mine) of the clause is going to show’ that notice is to be given for the amount of the cheque and not for any other amount and if notice is given other than the amount of the cheque value that is not a valid notice in compliance of the clause (b) of the proviso to section 138 of the NI Act. But I find from the record that in the notice though there had been a statement in respect of the cheque amount but ultimately the demand was made for Taka 5,80,000 which is not the cheque amount at all and it would be wise job for me to copy here the relevant portion of the demand from the notice exhibit 5. The clause 5 of the notice runs as follows:
5| me©‡kl Avcwb †bvwUk MÖnxZv D³ †bvwUk cÖvß nIqvi 7(mvZ) w`‡bi g‡a¨ Avgvi †gvqv‡°j gs UvKv 5,80,000 (cuvP jÿ Avwk nvRvi) UvKv cÖ`vb Kwi‡Z e¨_© nB‡j Avgvi †gvqv‡°j Avcbvi weiæ‡× negotiable Instrument Act Gi 138 aviv g‡Z weÁ Av`vj‡Z gvgjv `v‡qi Kwi‡Z eva¨ nB‡eb Ges Avgvi †gvqv‡°j D³ AvB‡bi eZ©gvb cÖwZKvi cÖv_©bv Kwi‡Z eva¨ nB‡eb|
15. From the above statements of the notice itself, it shows that the ultimate demand was made for Taka 5,80,000 which is inconsistent with the requirements of the law as provided in section 138 of the NI Act.
16. Now, the question before me what may be the consequence of this non-compliance of law noticed above. In this connection the learned Advocate for the appellant referring the case of TCI Finance Ltd vs State of Andhra Pradesh and another reported in company Cases, Volume 124, 2005 page 29-34 submits that while demanding payment by issuing a notice under clause(b) of the proviso to section 138, of the NI Act, the holder in due course of the cheque must demand for the payment of the amount covered by the cheque and if the demand is for lesser or for a higher amount not covered by the cheque which was dishonoured, then the prosecution must fail as the statutory requirement of section 138, proviso (b) is not fulfilled.
17. On going to the reported case it appears that for failure to serve a notice for the cheque value the prosecution case failed. The relevant findings of the reported case runs as follows:
“If the notice is either for lesser amount or for more amount than the amount covered by the cheque, it amounts to failure to fulfil all the technical formalities contemplated under section 138 of the Act, therefore, the respondent-accused herein cannot be prosecuted (page 33 of the judgment)
18. The learned Advocate for the appellant also referred the case of AIR 2003 Supreme Court 4689, KR Indira vs Dr G. Adinarayana. In this reported case the Supreme Court of India also took the same view as it was taken by the High Court of Andhra Pradesh. The Supreme Court of India in the judgment observed in the following manner:
“However, according to the respondent the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and nor the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount.”
19. The decisions taken in the reported cases in respect of notice demanding the payment of cheque amounts have a full manner application for the case in my hands.
20. In this regard, the learned Advocate for the respondent No. 2 taking me through the notice submits that though a higher amount was demanded through the notice but in the notice the cheque value was also demanded. So in that view of the matter there is no scope to say that the cheque value was not demanded through the notice to the convict appellant.
21. On a meticulous perusal of the notice in question (exhibit 5) it appears that there is a statement in respect of the cheque which was bounced in connection of the case but ultimately the demand was made for Taka 5,80,000 which will be evident from the notice portion of the notice which I have copied within this judgment hereinbefore. So, the notice in question cannot be considered as a notice demanding Taka 4,00,000 which was the cheque value rather notice was served demanding Taka 5,80,000 in flagrant violation of the provisions of section 138 of the NI Act. In the two cases of Indian jurisdiction as discussed earlier I find that they have formed a very strong and tight view that when notice is not served in compliance of the provision of law, the prosecution case must fail. In my consideration in demanding the payment of money by issuing a notice under clause (b) of the proviso to section 138 of the NI Act, the payee or the holder in due course of the cheque must demand and for the payment of the amount covered by the cheque nor any higher or lesser amount of the cheque and if the demand is made for a lesser amount or for a big amount not covered by the cheque, which was dishonoured the prosecution case must fail as the statutory requirements of section 138 of the NI Act has not been fulfilled.
22. The next argument advanced by the learned Advocate for the appellant that since the convict appellant was not examined under section 342 of the Code the trial has been vitiated as a whole.
23. On going to the materials on record it appears that the case was fixed for examination of the accused on 22-1-2007 but on that day the convict appellant was found absent in the Court and accordingly the trial Court recorded an order noticing the absence of the accused that he could not be examined under section 342 of the Code due to his absence and the Court accordingly fixed the case for hearing of argument on 1-2-2007 but before that fixed date, the convict appellant appearing in the Court below on the following day on 23-1-2007 sought bail and he was again enlarged on bail. But neither the prosecution nor the defence answered sending back a case for retrial from the stage of examination under section 342 of the Code and in the case of Abdul Gafur @ Haji Abdul Gafur and others vs Jogesh Chandra Roy and another 11 BLD (AD) 108=43 DLR (AD) 62 the Appellate Division also taking the same view asked the trial Court for retrial from the stage of section 342 of the Code.
26. Having regards to the above citation I find that had it been a case before me that the judgment of the trial Court is at fault for the non-examination of the convict appellant under section 342 of the Code only, in that case, the case could be sent back on retrial from the stage of examination under Section 342 of the Code but as have found that for some other cogent reason as to the non-compliance of the provisions of clause (b) of the proviso to section 138 of the NI Act the conviction and sentence cannot be upheld. So, there appears no suitable reason for sending back the case on retrial to cure the lacuna taken place for non-examination of the accused under section 342 of the Code. Having regards to the above discussion find that the judgment and the order of conviction and sentence, appealed against, is not maintainable in the eye of law.
27. In the result, the appeal is allowed. The conviction and sentence passed on the convict appellant in Sessions case No. 654 of 2006 arising out of CR case No. 239 of 2006 of CMM Court Chittagong is hereby set-aside and the convict appellant it acquitted of the charge levelled against him. Let the appellant is allowed to withdraw the money deposited at the eve of filing this appeal.
Let a copy of the judgment be sent to the concerned Court along with the lower Courts record.
