High Court Division :
(Criminal Revisional Jurisdiction)
Zafar Ahmed J
Mahmudul Hasan (Md) ……..Petitioner
vs
State and another……….Opposite Parties
Judgment August 24th, 2017
Negotiable Instruments Act (XXVI of 1881)
Section 138
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. (17)
Sentence
There can be no dispute insofar as the sentence of imprisonment is concerned as it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of 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. …… (18)
Nizamuddin Mahmood vs Abdul Humid Bhuiyan, 60 DLR (AD) 195 ref.
Mohammad Bakir Uddin Bhiyan with Md Abu Hanif, Advocates-For the Petitioner.
Md Aminur Rahman Chowdhury, AAG-For the Opposite Party No.1 (State).
Judgment
The complainant respondent-petitioner namely Md Mahmudul Hasan has filed the instant revision under Section 439 read with Section 435 of the Code of Criminal Procedure challenging the legality of the judgment and order dated 6-1-2016 passed by the Additional Sessions Judge, 3rd Court, Comilla in Criminal Appeal No. 144 of 2015 allowing the appeal and thereby setting aside the judgment and order of conviction and sentence dated 29-9-2013 passed by the Joint Sessions Judge, 4th Court, Comilla in Sessions Case No. 774 of 2012 arising out of CR Case No. 379 of 2012 convicting the opposite party No. 2 Md Elahi Baks under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him 10 suffer rigorous imprisonment for 1 (one) year and also to pay a fine of Taka 4,00,000 (four lac) which is equivalent of the value of the dishonoured cheque.
2. This Court on 25-2-2016, issued a Rule.
3. Mr Mohammad Bakir Uddin Bhuiyan along with Mr Mil Abu Hanif, the learned Advocates, appearing on behalf of the complainant-respondent-petitioner, took me through the judgment and order passed by the appellate Court and that of the trial Court and submits that the trial Court, upon proper appreciation and assessment of facts and the applicable law, found the accused-opposite party No.2 guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the ‘Act, 1881’). The learned Advocate further submits that the appellate Court below, upon erroneous application of law, allowed the appeal and set aside the order of conviction which is not sustainable in law. In support of the argument, the learned Advocate refers to the case of Nizamuddin Mahmood vs Abdul Humid Bhuiyan, 60 DLR (AD) 195.
4. The opposite party No.2 did not enter appearance in the Rule.
5. I have heard the learned Advocate for the complainant-petitioner and perused the materials on record.
6. It appears from the records that after obtaining bail from the trial Court, the opposite party No.2 became fugitive and he did not face the trial. Charge was framed in his absence and the trial was held in absentia of the accused.
7. During the trial, the prosecution examined the complainant as PW1. The petition of complaint (exhibit -1, 1(1)), the cheque in question (exhibit-2), bank’s dishonour slip (exhibit-3) and legal notice with postal receipt (exhibit-4 and 4(1)) were produced by the prosecution before the Court as documentary evidence.
8. PWl deposed that the accused took loan of Taka 4,00,000 from him. In order to repay the loan, the accused gave him the cheque in queation dated 4-1-2012 of Taka 4,00,000. The cheque was presented to the concerned bank for encashment on 26-1-2012, but the same was dishonoured for insufficiency of fund. On 29-1-2012, the complainant sent a legal 1 notice by registered post to the accused, but the accused did not pay the value of the cheque to the complainant. The case was filed on 22-3-2012.
9. The trial Court observed that “There was a transaction between the complainant and the accused, the accused issued the cheque in question. The cheque in question was dishonoured since there was no sufficient fund. In such a situation after fulfilling the legal requirement of Section 138(1)(b) and (c) and Section 141 of the Act, the complainant filed the complaint case. Under the facts and circumstances it appears that the prosecution succeeded to prove the case against the accused beyond any reasonable doubt.”
10. The “appellate Court below allowed the appeal and reversed the guilty verdict. The reasons assigned by the appellate Court below for allowing the appeal are as follows:
“Though it is seen from the complaint petition that a notice has been sent through registered post which is proved by the exhibit No. ‘4’ but the complainant fails to produce any evidence of receipt of the notice by the accused i.e. by producing receipt of acknowledgement due or to prove the receipt in otherwise. The complainant fails to produce any receipt of acknowledgement due showing the date of receipt. Then this is clear violation of the provision of Section 138(IA)(b) of the Negotiable Instruments Act, 1881 that whether the case has been filed within the specified time mentioned under Section 141(b) of the same Act or 30 days had been given to the accused for payment of the amount written on the cheque. For which this Court thinks the offence defined under Section 138 of the Negotiable Instruments Act, 1881 has not been constituted here and the accused-appellant is not liable to be punished. The trial Court grossly mistook in finding the accused guilty with the charge of the offence which causes miscarriage of justice that warrant interference.”
11. The learned Advocate for the complainant-petitioner submits that in view of the decision given in the case of Nizamuddin Mahmood (supra), the interpretation of law given by the appellate Court below is wrong.
12. In Nizamuddin Mahmood, the High Court Division quashed the proceedings initiated under Section 138 of the Act, 1881. The complainant Nizamuddin Mahmood moved to the Appellate Division and the appeal was dismissed. Thereafter, he filed a review petition. The only legal issue in review petition was whether a proceeding under Section 138 can be allowed to continue even though the petition of complaint does not disclose the date of receipt of notice by the accused and does not also mention any legal cause of action. The apex Court answered the question as under:
“It appears that the notice was sent by registered post and there is a presumption under Section 27 of the General Clauses Act as to the registered post but this aspect was not considered earlier by this Court.
It further appears that it is not possible to know about date of receipt of the notice for the complainant and such a fact is to be proved at the trial and generally in all cases the receipt of notice is denied and service is asserted and therefore, such a question cannot be decided in a proceeding under Section 561A of the Code of Criminal Procedure.”
13. In the reported case, the review petition was allowed and consequently the judgment and order passed by the Appellate Division and that of the High Court Division were set aside.
14. Section 27 of the General Clauses Act, 1897 is quoted below for ready reference:
27. Meaning of service by post-Where any Act of Parliament or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be levied by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
15. Reverting back to the case in hand, the legal notice was marked as exhibit-4, and the registered postal receipt was marked as exhibit-4/1. The complainant proved service of notice by registered post. Therefore, I have no hesitation to hold that the appellable Court below allowed the appeal upon erroneous interpretation of law which cannot be sustained in view of the decision laid down in the case of Nizamuddin Mahmoud and Section 27 of the General Clauses Act, 1897. The judgment and order passed by the trial Court does not suffer from any illegality or infirmity.
16. 1 note that the trial Court awarded sentence of 1 year rigorous imprisonment and fine of Taka 4,00,000 which is equivalent of the value of the dishonoured cheque upon the convict -opposite party No. 2.
17. Section 138(1) 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. Subsection (2) of Section 138 provides that “Where any fine is realised under subsection (I), 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.
18. There can be no dispute insofar as the sentence imprisonment is concerned it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of 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, 1 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.
19. I further note that the appellate Court below, vide order dated 16-6-2016 granted permission to the opposite party No. 2 to withdraw the deposit of Taka 2,00,000 which was deposited at the time of filing the appeal. The learned Advocate for the complainant-petitioner informs this Court that the opposite party No.2 has already withdrawn the money.
20. Since I have already found that the judgment and order passed by the appellate Court below cannot be sustained in law and that the trial Court correctly found the convict-opposite party No.2 guilty of the offence, I find merit in the Rule.
21. In the result, the Rule is made absolute. The judgment and order (dated 6-l-2016 passed by the Additional Sessions Judge, 3rd Court, Comilla in Criminal Appeal No. 144 of 2015 is set aside. The judgment and order dated 29-9-2013 passed by the Joint Sessions Judge, 4th Court, Comilla in Sessions Case No. 774 of 2012 arising out of CR Case No. 379 of 2012 is upheld. However, in view of the discussion made above on point of sentence of imprisonment, the order of sentence of 1 year rigorous imprisonment is set aside. The convict-opposite party No. 2 is directed to pay the fine of Taka 4,00,000 (four lac) to the complainant-petitioner within 3 months from the date of receipt of the judgment in default he will suffer rigorous imprisonment for 3 (three) months. If the convict-opposite party No.2 does not pay the fine of Taka 4,00,000 to the complainant as directed, the same shall he realised in accordance with law.
Send down the lower Court’s records (LCR) at once. Communicate the judgment and order to the Court concerned forthwith.
(Criminal Revisional Jurisdiction)
Zafar Ahmed J
Mahmudul Hasan (Md) ……..Petitioner
vs
State and another……….Opposite Parties
Judgment August 24th, 2017
Negotiable Instruments Act (XXVI of 1881)
Section 138
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. (17)
Sentence
There can be no dispute insofar as the sentence of imprisonment is concerned as it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of 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. …… (18)
Nizamuddin Mahmood vs Abdul Humid Bhuiyan, 60 DLR (AD) 195 ref.
Mohammad Bakir Uddin Bhiyan with Md Abu Hanif, Advocates-For the Petitioner.
Md Aminur Rahman Chowdhury, AAG-For the Opposite Party No.1 (State).
Judgment
The complainant respondent-petitioner namely Md Mahmudul Hasan has filed the instant revision under Section 439 read with Section 435 of the Code of Criminal Procedure challenging the legality of the judgment and order dated 6-1-2016 passed by the Additional Sessions Judge, 3rd Court, Comilla in Criminal Appeal No. 144 of 2015 allowing the appeal and thereby setting aside the judgment and order of conviction and sentence dated 29-9-2013 passed by the Joint Sessions Judge, 4th Court, Comilla in Sessions Case No. 774 of 2012 arising out of CR Case No. 379 of 2012 convicting the opposite party No. 2 Md Elahi Baks under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him 10 suffer rigorous imprisonment for 1 (one) year and also to pay a fine of Taka 4,00,000 (four lac) which is equivalent of the value of the dishonoured cheque.
2. This Court on 25-2-2016, issued a Rule.
3. Mr Mohammad Bakir Uddin Bhuiyan along with Mr Mil Abu Hanif, the learned Advocates, appearing on behalf of the complainant-respondent-petitioner, took me through the judgment and order passed by the appellate Court and that of the trial Court and submits that the trial Court, upon proper appreciation and assessment of facts and the applicable law, found the accused-opposite party No.2 guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the ‘Act, 1881’). The learned Advocate further submits that the appellate Court below, upon erroneous application of law, allowed the appeal and set aside the order of conviction which is not sustainable in law. In support of the argument, the learned Advocate refers to the case of Nizamuddin Mahmood vs Abdul Humid Bhuiyan, 60 DLR (AD) 195.
4. The opposite party No.2 did not enter appearance in the Rule.
5. I have heard the learned Advocate for the complainant-petitioner and perused the materials on record.
6. It appears from the records that after obtaining bail from the trial Court, the opposite party No.2 became fugitive and he did not face the trial. Charge was framed in his absence and the trial was held in absentia of the accused.
7. During the trial, the prosecution examined the complainant as PW1. The petition of complaint (exhibit -1, 1(1)), the cheque in question (exhibit-2), bank’s dishonour slip (exhibit-3) and legal notice with postal receipt (exhibit-4 and 4(1)) were produced by the prosecution before the Court as documentary evidence.
8. PWl deposed that the accused took loan of Taka 4,00,000 from him. In order to repay the loan, the accused gave him the cheque in queation dated 4-1-2012 of Taka 4,00,000. The cheque was presented to the concerned bank for encashment on 26-1-2012, but the same was dishonoured for insufficiency of fund. On 29-1-2012, the complainant sent a legal 1 notice by registered post to the accused, but the accused did not pay the value of the cheque to the complainant. The case was filed on 22-3-2012.
9. The trial Court observed that “There was a transaction between the complainant and the accused, the accused issued the cheque in question. The cheque in question was dishonoured since there was no sufficient fund. In such a situation after fulfilling the legal requirement of Section 138(1)(b) and (c) and Section 141 of the Act, the complainant filed the complaint case. Under the facts and circumstances it appears that the prosecution succeeded to prove the case against the accused beyond any reasonable doubt.”
10. The “appellate Court below allowed the appeal and reversed the guilty verdict. The reasons assigned by the appellate Court below for allowing the appeal are as follows:
“Though it is seen from the complaint petition that a notice has been sent through registered post which is proved by the exhibit No. ‘4’ but the complainant fails to produce any evidence of receipt of the notice by the accused i.e. by producing receipt of acknowledgement due or to prove the receipt in otherwise. The complainant fails to produce any receipt of acknowledgement due showing the date of receipt. Then this is clear violation of the provision of Section 138(IA)(b) of the Negotiable Instruments Act, 1881 that whether the case has been filed within the specified time mentioned under Section 141(b) of the same Act or 30 days had been given to the accused for payment of the amount written on the cheque. For which this Court thinks the offence defined under Section 138 of the Negotiable Instruments Act, 1881 has not been constituted here and the accused-appellant is not liable to be punished. The trial Court grossly mistook in finding the accused guilty with the charge of the offence which causes miscarriage of justice that warrant interference.”
11. The learned Advocate for the complainant-petitioner submits that in view of the decision given in the case of Nizamuddin Mahmood (supra), the interpretation of law given by the appellate Court below is wrong.
12. In Nizamuddin Mahmood, the High Court Division quashed the proceedings initiated under Section 138 of the Act, 1881. The complainant Nizamuddin Mahmood moved to the Appellate Division and the appeal was dismissed. Thereafter, he filed a review petition. The only legal issue in review petition was whether a proceeding under Section 138 can be allowed to continue even though the petition of complaint does not disclose the date of receipt of notice by the accused and does not also mention any legal cause of action. The apex Court answered the question as under:
“It appears that the notice was sent by registered post and there is a presumption under Section 27 of the General Clauses Act as to the registered post but this aspect was not considered earlier by this Court.
It further appears that it is not possible to know about date of receipt of the notice for the complainant and such a fact is to be proved at the trial and generally in all cases the receipt of notice is denied and service is asserted and therefore, such a question cannot be decided in a proceeding under Section 561A of the Code of Criminal Procedure.”
13. In the reported case, the review petition was allowed and consequently the judgment and order passed by the Appellate Division and that of the High Court Division were set aside.
14. Section 27 of the General Clauses Act, 1897 is quoted below for ready reference:
27. Meaning of service by post-Where any Act of Parliament or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be levied by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
15. Reverting back to the case in hand, the legal notice was marked as exhibit-4, and the registered postal receipt was marked as exhibit-4/1. The complainant proved service of notice by registered post. Therefore, I have no hesitation to hold that the appellable Court below allowed the appeal upon erroneous interpretation of law which cannot be sustained in view of the decision laid down in the case of Nizamuddin Mahmoud and Section 27 of the General Clauses Act, 1897. The judgment and order passed by the trial Court does not suffer from any illegality or infirmity.
16. 1 note that the trial Court awarded sentence of 1 year rigorous imprisonment and fine of Taka 4,00,000 which is equivalent of the value of the dishonoured cheque upon the convict -opposite party No. 2.
17. Section 138(1) 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. Subsection (2) of Section 138 provides that “Where any fine is realised under subsection (I), 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.
18. There can be no dispute insofar as the sentence imprisonment is concerned it should commensurate with the gravity of the crime. Court has to deal with the offenders by imposing proper sentence by taking into consideration of 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, 1 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.
19. I further note that the appellate Court below, vide order dated 16-6-2016 granted permission to the opposite party No. 2 to withdraw the deposit of Taka 2,00,000 which was deposited at the time of filing the appeal. The learned Advocate for the complainant-petitioner informs this Court that the opposite party No.2 has already withdrawn the money.
20. Since I have already found that the judgment and order passed by the appellate Court below cannot be sustained in law and that the trial Court correctly found the convict-opposite party No.2 guilty of the offence, I find merit in the Rule.
21. In the result, the Rule is made absolute. The judgment and order (dated 6-l-2016 passed by the Additional Sessions Judge, 3rd Court, Comilla in Criminal Appeal No. 144 of 2015 is set aside. The judgment and order dated 29-9-2013 passed by the Joint Sessions Judge, 4th Court, Comilla in Sessions Case No. 774 of 2012 arising out of CR Case No. 379 of 2012 is upheld. However, in view of the discussion made above on point of sentence of imprisonment, the order of sentence of 1 year rigorous imprisonment is set aside. The convict-opposite party No. 2 is directed to pay the fine of Taka 4,00,000 (four lac) to the complainant-petitioner within 3 months from the date of receipt of the judgment in default he will suffer rigorous imprisonment for 3 (three) months. If the convict-opposite party No.2 does not pay the fine of Taka 4,00,000 to the complainant as directed, the same shall he realised in accordance with law.
Send down the lower Court’s records (LCR) at once. Communicate the judgment and order to the Court concerned forthwith.
