High Court Division :
(Criminal Appellate Jurisdiction)
ANM Bashir Ullah J
Muraduzzaman Polash (Md) … Convict -Appellant
vs
State and another .
. . . . . . . . . . . . .. Respondents *
Judgment
February 12th, 2014.
Negotiable Instruments Act (XXVI of 1881)
Section 138(2)
Since subsection (2) of section 138 make clear provision for getting the face value of the cheque by the holder of the cheque, so there should have been black and white order in the judgment otherwise it may create confusion as to the entitlement by the holder of the cheque. ….. (11)
None appears-For the Appellant.
Arobinda Kumar Roy (Ananda), Advocate-For the Respondent No.2.
Md Ashaque Momin with Salma Rahman, AAG-For the Respondent No. 1.
Judgment
This appeal, under section 410 of the Code of Criminal Procedure (in short, the Code) at the instance of the convict appellant is directed against the impugned judgment and order dated 16-9-2013 passed by the Sessions Judge, Sirajgonj in Sessions case No. 435 of 2013 arising out of CR case No. 41 of 2013 (Sadar) convicting the appellant under section 138 of the Negotiable Instrument Act, 1881 (in short the NI Act) sentencing him to suffer rigorous imprisonment for 1(one) year and also to pay fine of Taka 10,71,000 in default to suffer simple imprisonment for 3(three) months more.
2. The facts relevant for the disposal of the appeal, in short, is that Md Tariqul Islam Pulak as complainant filed the petition of complaint in the appropriate Court of Magistrate at Sirajgonj on 3-2-2013 alleging inter-alia that accused Md Muraduzzaman Polash in order to make payment of Taka 1,00,000 drew a cheque in favour of the complainant being cheque SB-10. 0340251, for Taka 2,25,000 being cheque No. SB-I0 0340252 . and for Taka 32,000 cheque No. SB-10, 0320253 on 10-12-12 of his account No. 5330 Janata Bank, Sirajgonj Branch. The holder of the cheque presented the cheques into the bank on the same date on 10-12-12 but the cheques were dishonoured for insufficiency of fund. The complainant issued legal notice on 2-1-2013 demanding the payment of the cheque amount but the drawer of the cheque on receipt of the said legal notice did not make the payment of the cheque value. Thereafter the complainant filed the petition of complaint under section 138 of the NI Act.
3. On the basis of the said petition of complaint CR case No. 41 of 2013 was started. Subsequently the accused was enlarged on bail by the Court and ultimately the accused put on trial before the Sessions Judge, Sirajgonj where the case was registered as sessions case No. 435 of 2013. On 8-9-2013 charge was framed under section 138 of the NI Act against the accused. But the answer on the charge could not be recorded as the accused was absconding on that day and ultimately the trial was held in his absentia.
4. The prosecution examined one witness and submitted the cheques and other related documents which were duly marked as exhibit Nos. 1-5 series and after completion of the recording of evidence the accused could not be examined as he was an fugitive accused. The trial Court on consideration of the evidence and other materials on record found the accused guilty under section 138 of the NI Act sentencing him to suffer rigorous imprisonment for 1 (one) year with a fine of Taka 10,71,000. The convict appellant being aggrieved by and dissatisfied with the said judgment depositing 50% of the amount of the cheque value preferred this appeal in this Court.
5. None appears on behalf of the appellant to support the appeal.
6. Mr Md Ashaque Momin, learned Assistant Attorney-General for the respondent No. I and Mr Arobindra Kumar Roy for the respondent No.2 appearing in this appeal support the judgment of the trial Court. They submit that the cheques were presented before the bank for encashment on the date of its issuance and the same was bounced on the same date on 10-12-2012 and within 30 days as provided in clause (b) to the proviso of section 138 notice was served upon the accused demanding the payment of the value of the cheques and since then the accused did not turn up and the complainant filed the petition of complaint within 60 days as provided in sections 138 and 141 of the NI Act and the trial Court considering all this facts and figures found the accused guilty rightly under section 138 of the NI Act. There is no any illegality or infirmity in the judgment of the trial Court below and in fact the appellant in his petition of appeal could not assail the judgment of the trial Court on any point. The appellant has taken some luxurious objection against the judgment but could not ventilate any categorical legal objection against the judgment.
So the appeal is liable to be dismissed.
7. I have considered the above arguments and submissions of the learned Advocates appearing for the respondent Nos. 1 and 2 with profound attention and have gone through the materials on record.
8. On going through the materials on record it appears from the cheques which have been marked as exhibit I and 1/1 and 1/2 that it was drawn by the accused on 10-12-2012 and from the exhibit 2 series it appears that the same were bounced on the same date for insufficient funds. Clause (a) to the proviso of section 138 of the NI Act provides that such cheques are required to be presented to the bank within a period of 6 (six) months from the date of its issue but I find that the cheques were presented on the same date when it was drawn in favour of the complainant and the notice was also served within 30 days from the date of the bounce of the cheques as provided in clause (b) to the proviso of section 138.
9. The materials on record further shows that the petition of complaint was filed within 60 days as required under clause (c) to the proviso of sections 138 and 141 of the N I Act. So there appears no illegality in filing of the case. Though the trial Court in his judgment did not discuss categorically when the notice was served and when the case was filed and whether that was within the ambit of the law as provided in section 138 and 141 of the NI Act although the same should have been discussed by the trial Court.
10. On going through the petition of appeal I find no realistic grounds ever taken in order to assail the judgment of the trial Court. The grounds taken so far appears to be very much luxurious and traditional in nature which is not cogent and did not match with the defence case, such as the conviction is too harsh and the sentence is not proper etc but why the judgment of conviction and sentence is improper that has not been ventilated in the petition of appeal. So I find it difficult to interfere in the judgment of the trial Court below.
11. The trial Court fails to make any positive order as to the settlement of the fine awarded by him as provided in subsection (2) of section 138 of the Negotiable Instrument Act. The judgment was given by the top most senior Judge of the district but even then there appears serious lacuna in the judgment. Had there been no such order it may create trouble for the complainant to get the money of the cheque value. Since subsection (2) of section 138 make clear provision for getting the face value of the cheque by the holder of the cheque, so there should have been black and white order in the judgment otherwise it may create confusion as to the entitlement by the holder of the cheque.
12. However, having regards to the above discussion I find that though the judgment has some lacking in respect of entitlement of the cheque value by the holder of the cheque but the same ultimately did not affect the decision of the Court below.
13. The trial Court convicted the appellant under section 138 of the NI Act sentencing him to suffer rigorous imprisonment for one year with a fine of Taka 10,71 ,000 that is, the order of fine imposed was three times the value of the cheques.
The amount of fine as it was awarded by the trial Court may work very harshly upon the convict appellant, so I am of the view that the conviction may be upheld modifying the sentence regarding the fine.
14. In the result, the appeal is dismissed with the modification of the sentence passed by the trial Court. The I ( one) year rigorous imprisonment sentence as ordered by the trial Court under section 138 of the NI Act is maintained but the fine is reduced into Taka 3,57,000 (the face value of 3 cheques) instead of fine of Taka 10,71,000.
The holder of the cheque (complainant) will get the amount due to him four the fine imposed by the Court.
Let a copy of this judgment and order be sent to the trial Court below along with Lower Court Record for information and necessary action.
(Criminal Appellate Jurisdiction)
ANM Bashir Ullah J
Muraduzzaman Polash (Md) … Convict -Appellant
vs
State and another .
. . . . . . . . . . . . .. Respondents *
Judgment
February 12th, 2014.
Negotiable Instruments Act (XXVI of 1881)
Section 138(2)
Since subsection (2) of section 138 make clear provision for getting the face value of the cheque by the holder of the cheque, so there should have been black and white order in the judgment otherwise it may create confusion as to the entitlement by the holder of the cheque. ….. (11)
None appears-For the Appellant.
Arobinda Kumar Roy (Ananda), Advocate-For the Respondent No.2.
Md Ashaque Momin with Salma Rahman, AAG-For the Respondent No. 1.
Judgment
This appeal, under section 410 of the Code of Criminal Procedure (in short, the Code) at the instance of the convict appellant is directed against the impugned judgment and order dated 16-9-2013 passed by the Sessions Judge, Sirajgonj in Sessions case No. 435 of 2013 arising out of CR case No. 41 of 2013 (Sadar) convicting the appellant under section 138 of the Negotiable Instrument Act, 1881 (in short the NI Act) sentencing him to suffer rigorous imprisonment for 1(one) year and also to pay fine of Taka 10,71,000 in default to suffer simple imprisonment for 3(three) months more.
2. The facts relevant for the disposal of the appeal, in short, is that Md Tariqul Islam Pulak as complainant filed the petition of complaint in the appropriate Court of Magistrate at Sirajgonj on 3-2-2013 alleging inter-alia that accused Md Muraduzzaman Polash in order to make payment of Taka 1,00,000 drew a cheque in favour of the complainant being cheque SB-10. 0340251, for Taka 2,25,000 being cheque No. SB-I0 0340252 . and for Taka 32,000 cheque No. SB-10, 0320253 on 10-12-12 of his account No. 5330 Janata Bank, Sirajgonj Branch. The holder of the cheque presented the cheques into the bank on the same date on 10-12-12 but the cheques were dishonoured for insufficiency of fund. The complainant issued legal notice on 2-1-2013 demanding the payment of the cheque amount but the drawer of the cheque on receipt of the said legal notice did not make the payment of the cheque value. Thereafter the complainant filed the petition of complaint under section 138 of the NI Act.
3. On the basis of the said petition of complaint CR case No. 41 of 2013 was started. Subsequently the accused was enlarged on bail by the Court and ultimately the accused put on trial before the Sessions Judge, Sirajgonj where the case was registered as sessions case No. 435 of 2013. On 8-9-2013 charge was framed under section 138 of the NI Act against the accused. But the answer on the charge could not be recorded as the accused was absconding on that day and ultimately the trial was held in his absentia.
4. The prosecution examined one witness and submitted the cheques and other related documents which were duly marked as exhibit Nos. 1-5 series and after completion of the recording of evidence the accused could not be examined as he was an fugitive accused. The trial Court on consideration of the evidence and other materials on record found the accused guilty under section 138 of the NI Act sentencing him to suffer rigorous imprisonment for 1 (one) year with a fine of Taka 10,71,000. The convict appellant being aggrieved by and dissatisfied with the said judgment depositing 50% of the amount of the cheque value preferred this appeal in this Court.
5. None appears on behalf of the appellant to support the appeal.
6. Mr Md Ashaque Momin, learned Assistant Attorney-General for the respondent No. I and Mr Arobindra Kumar Roy for the respondent No.2 appearing in this appeal support the judgment of the trial Court. They submit that the cheques were presented before the bank for encashment on the date of its issuance and the same was bounced on the same date on 10-12-2012 and within 30 days as provided in clause (b) to the proviso of section 138 notice was served upon the accused demanding the payment of the value of the cheques and since then the accused did not turn up and the complainant filed the petition of complaint within 60 days as provided in sections 138 and 141 of the NI Act and the trial Court considering all this facts and figures found the accused guilty rightly under section 138 of the NI Act. There is no any illegality or infirmity in the judgment of the trial Court below and in fact the appellant in his petition of appeal could not assail the judgment of the trial Court on any point. The appellant has taken some luxurious objection against the judgment but could not ventilate any categorical legal objection against the judgment.
So the appeal is liable to be dismissed.
7. I have considered the above arguments and submissions of the learned Advocates appearing for the respondent Nos. 1 and 2 with profound attention and have gone through the materials on record.
8. On going through the materials on record it appears from the cheques which have been marked as exhibit I and 1/1 and 1/2 that it was drawn by the accused on 10-12-2012 and from the exhibit 2 series it appears that the same were bounced on the same date for insufficient funds. Clause (a) to the proviso of section 138 of the NI Act provides that such cheques are required to be presented to the bank within a period of 6 (six) months from the date of its issue but I find that the cheques were presented on the same date when it was drawn in favour of the complainant and the notice was also served within 30 days from the date of the bounce of the cheques as provided in clause (b) to the proviso of section 138.
9. The materials on record further shows that the petition of complaint was filed within 60 days as required under clause (c) to the proviso of sections 138 and 141 of the N I Act. So there appears no illegality in filing of the case. Though the trial Court in his judgment did not discuss categorically when the notice was served and when the case was filed and whether that was within the ambit of the law as provided in section 138 and 141 of the NI Act although the same should have been discussed by the trial Court.
10. On going through the petition of appeal I find no realistic grounds ever taken in order to assail the judgment of the trial Court. The grounds taken so far appears to be very much luxurious and traditional in nature which is not cogent and did not match with the defence case, such as the conviction is too harsh and the sentence is not proper etc but why the judgment of conviction and sentence is improper that has not been ventilated in the petition of appeal. So I find it difficult to interfere in the judgment of the trial Court below.
11. The trial Court fails to make any positive order as to the settlement of the fine awarded by him as provided in subsection (2) of section 138 of the Negotiable Instrument Act. The judgment was given by the top most senior Judge of the district but even then there appears serious lacuna in the judgment. Had there been no such order it may create trouble for the complainant to get the money of the cheque value. Since subsection (2) of section 138 make clear provision for getting the face value of the cheque by the holder of the cheque, so there should have been black and white order in the judgment otherwise it may create confusion as to the entitlement by the holder of the cheque.
12. However, having regards to the above discussion I find that though the judgment has some lacking in respect of entitlement of the cheque value by the holder of the cheque but the same ultimately did not affect the decision of the Court below.
13. The trial Court convicted the appellant under section 138 of the NI Act sentencing him to suffer rigorous imprisonment for one year with a fine of Taka 10,71 ,000 that is, the order of fine imposed was three times the value of the cheques.
The amount of fine as it was awarded by the trial Court may work very harshly upon the convict appellant, so I am of the view that the conviction may be upheld modifying the sentence regarding the fine.
14. In the result, the appeal is dismissed with the modification of the sentence passed by the trial Court. The I ( one) year rigorous imprisonment sentence as ordered by the trial Court under section 138 of the NI Act is maintained but the fine is reduced into Taka 3,57,000 (the face value of 3 cheques) instead of fine of Taka 10,71,000.
The holder of the cheque (complainant) will get the amount due to him four the fine imposed by the Court.
Let a copy of this judgment and order be sent to the trial Court below along with Lower Court Record for information and necessary action.
