(From previous issue) :
13. In the case of Khalilur Rahman vs Md Habibullah reported in 57 DLR 603 by relying upon the decision reported in Company Cases Vol. 182 page 46 His Lordship Mr Justice Md Anwarul Haque (as he was then) made the following observation:-
“Taking all these views in mind, I am of the opinion that the aforesaid submission ,made by the learned Advocate relating to those words ‘refer to drawer’ is based on a purely literal interpretation of the provision of Section 138. It totally failed to take into account the entire scheme of Section 138 read with Section 141 of the said Act. It also fails to take into account the object sought to be achieved by legislature by introducing Chapter XVII in the Negotiable Instruments Act, 1881. Moreover, from the heading of the section it becomes also clear that the legislature never intended to dishonour the cheques to be made punishable only in case of insufficiency of fund or exceeds the amount arranged to be paid since the word ‘etc’ has also been used there by the caption of the section. So, it can be easily presumed that legislature contemplated various other reasons where the cheque is dishonoured preventing the payee from encashing the face value of the cheque.
It is to be remembered that legislature has also installed a safety-valve by incorporating the clause (b) in Section 138(1) of the Negotiable Instruments Act, 1881 for the drawer from unnecessary harassment if he has got intention to pay the amount in question shown in the cheque.
Considering all these aspects, it can easily be held that the term ‘refer to drawer’ is a courteous way adopted by the bank to show its inability to honour the cheque for want of funds. It is also found that under the scheme of the Act, the offence punishable under Section 138 would be completed only upon the failure by the drawer to pay within fortnight of the receipt of notice from the payee of the dishonour of the cheque. When the drawer fails to make such payment within the period specified in Clause (C) of the proviso, the offence is complete.”
14. We are in respectful agreement with the above quoted decisions and we are of the view that endorsement of the words ‘account closed’ has clearly indicated insufficiency of fund as contemplated in the Section 138(1) of the Negotiable Instrument Act which comes within the criminal liability of the drawer.
15. In the instant case, the drawer i.e. the accused-respondent failed to pay the amount shown in the cheque (Exhibit-I) within the prescribed period, mentioned in clause (c) on receipt of notice under clause (b) of the section 138(1) of the Negotiable Instrument Act. On the other hand nothing has been denied by the defence which is available in the complaint petition in any way. Issuance of cheque (Exhibit-2), return of cheque with an endorsement account closed (Exhibit-2) and receipt of registered postal notice with A/D as required under Clause (b) of Section 138(1) of the Act (Exhibit-3 series) have not also been denied by the accused-respondent by way of cross examination of PW-l. Though the prosecution examined one witness in the case but as the accused respondent did not deny the fact of issuance of cheque, dishonoured by reason of account closed and receipt of legal notice, it can easily be considered that the prosecution has been able to prove the charge against accused respondent beyond reasonable doubt. But the learned Metropolitan Joint Sessions Judge misdirected himself in the total approach of the case and failed to appreciate and apply the laws and settled principles in resolving the controversy between the parties. The approach adopted by him is purely wooden and conclusion reached by him in recording a judgment of acquittal is laconic. As such the decision suffers from perversity, patent legality, the legal infirmity and fragrant error of law and thus caused grave miscarriage of justice by acquitting the licensed respondent and as such the judgment of acquittal is not sustainable. Law and justice demand that the impugned judgment of acquittal is liable to be set aside and is to be converted into conviction.
16. Considering the above facts and circumstances of the case we hold that the accused-respondent No.1 Babul is found guilty of offence under Section 138 of the Negotiable Instrument Act, 1881 and he deserves to be convicted thereunder with penalty.
17. In the result, the appeal is allowed. The judgment of acquittal dated 5-9-2012 passed by the learned Metropolitan Joint Sessions Judge, 4th Court, Dhaka, in Metropolitan Sessions Case No. 6291 of 2011 is set aside.
18. Accused-respondent is found guilty of offence under Section 138 of Negotiable Instrument Act, 1881 and he be convicted thereunder. The judgment of acquittal is converted one of conviction. The accused-respondent Babul is punished with simple imprisonment for 6 (six) months. The accused respondent shall surrender to the Court concerned immediately. In the event of failure on the part of accused respondent to surrender, the Court concerned shall take all steps for his apprehension and putting him into the jail.
19. The accused-respondent is also to pay a fine of Taka 12,00,000 (Taka Twelve lakh) within 30 days from the date of receipt of this judgment by the Trial Court. The fine shall have to be paid to the complainant-appellant and the complainant-appellant shall be entitled to receive that amount.
Communicate the judgment and order to the Court below at once, for compliance.
(Concluded)
13. In the case of Khalilur Rahman vs Md Habibullah reported in 57 DLR 603 by relying upon the decision reported in Company Cases Vol. 182 page 46 His Lordship Mr Justice Md Anwarul Haque (as he was then) made the following observation:-
“Taking all these views in mind, I am of the opinion that the aforesaid submission ,made by the learned Advocate relating to those words ‘refer to drawer’ is based on a purely literal interpretation of the provision of Section 138. It totally failed to take into account the entire scheme of Section 138 read with Section 141 of the said Act. It also fails to take into account the object sought to be achieved by legislature by introducing Chapter XVII in the Negotiable Instruments Act, 1881. Moreover, from the heading of the section it becomes also clear that the legislature never intended to dishonour the cheques to be made punishable only in case of insufficiency of fund or exceeds the amount arranged to be paid since the word ‘etc’ has also been used there by the caption of the section. So, it can be easily presumed that legislature contemplated various other reasons where the cheque is dishonoured preventing the payee from encashing the face value of the cheque.
It is to be remembered that legislature has also installed a safety-valve by incorporating the clause (b) in Section 138(1) of the Negotiable Instruments Act, 1881 for the drawer from unnecessary harassment if he has got intention to pay the amount in question shown in the cheque.
Considering all these aspects, it can easily be held that the term ‘refer to drawer’ is a courteous way adopted by the bank to show its inability to honour the cheque for want of funds. It is also found that under the scheme of the Act, the offence punishable under Section 138 would be completed only upon the failure by the drawer to pay within fortnight of the receipt of notice from the payee of the dishonour of the cheque. When the drawer fails to make such payment within the period specified in Clause (C) of the proviso, the offence is complete.”
14. We are in respectful agreement with the above quoted decisions and we are of the view that endorsement of the words ‘account closed’ has clearly indicated insufficiency of fund as contemplated in the Section 138(1) of the Negotiable Instrument Act which comes within the criminal liability of the drawer.
15. In the instant case, the drawer i.e. the accused-respondent failed to pay the amount shown in the cheque (Exhibit-I) within the prescribed period, mentioned in clause (c) on receipt of notice under clause (b) of the section 138(1) of the Negotiable Instrument Act. On the other hand nothing has been denied by the defence which is available in the complaint petition in any way. Issuance of cheque (Exhibit-2), return of cheque with an endorsement account closed (Exhibit-2) and receipt of registered postal notice with A/D as required under Clause (b) of Section 138(1) of the Act (Exhibit-3 series) have not also been denied by the accused-respondent by way of cross examination of PW-l. Though the prosecution examined one witness in the case but as the accused respondent did not deny the fact of issuance of cheque, dishonoured by reason of account closed and receipt of legal notice, it can easily be considered that the prosecution has been able to prove the charge against accused respondent beyond reasonable doubt. But the learned Metropolitan Joint Sessions Judge misdirected himself in the total approach of the case and failed to appreciate and apply the laws and settled principles in resolving the controversy between the parties. The approach adopted by him is purely wooden and conclusion reached by him in recording a judgment of acquittal is laconic. As such the decision suffers from perversity, patent legality, the legal infirmity and fragrant error of law and thus caused grave miscarriage of justice by acquitting the licensed respondent and as such the judgment of acquittal is not sustainable. Law and justice demand that the impugned judgment of acquittal is liable to be set aside and is to be converted into conviction.
16. Considering the above facts and circumstances of the case we hold that the accused-respondent No.1 Babul is found guilty of offence under Section 138 of the Negotiable Instrument Act, 1881 and he deserves to be convicted thereunder with penalty.
17. In the result, the appeal is allowed. The judgment of acquittal dated 5-9-2012 passed by the learned Metropolitan Joint Sessions Judge, 4th Court, Dhaka, in Metropolitan Sessions Case No. 6291 of 2011 is set aside.
18. Accused-respondent is found guilty of offence under Section 138 of Negotiable Instrument Act, 1881 and he be convicted thereunder. The judgment of acquittal is converted one of conviction. The accused-respondent Babul is punished with simple imprisonment for 6 (six) months. The accused respondent shall surrender to the Court concerned immediately. In the event of failure on the part of accused respondent to surrender, the Court concerned shall take all steps for his apprehension and putting him into the jail.
19. The accused-respondent is also to pay a fine of Taka 12,00,000 (Taka Twelve lakh) within 30 days from the date of receipt of this judgment by the Trial Court. The fine shall have to be paid to the complainant-appellant and the complainant-appellant shall be entitled to receive that amount.
Communicate the judgment and order to the Court below at once, for compliance.
(Concluded)
