IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 1524 of 2015

Md. Abu Syeed Sheikh

……..convict petitioner

-Vs-

The State and another

…………opposite parties. Mr. F.M. Mizanur Rahman, Advocate

…. For the convict petitioner Mr. Mostafa Golam Kibria, Advocate

……..For the opposite party No.2

Mr. S.M. Golam Mostofa Tara, DAG with Mr. A. Monnan, AAG

..… for the opposite parties Heard on. 15.11.2023, 28.11.2023

Judgment on 06.12.2023

On an application under section 439 read with section 435 of the Code of Criminal Procedure, 1898 the Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order of conviction and sentence dated 23.07.2015 passed by the Additional Metropolitan Sessions Judge, Khulna in Criminal Appeal No. 103 of 2013 affirming the judgment and order of conviction and sentence dated 11.03.2013 passed by the Joint Sessions Judge, Court No.1, Khulna in Session Case No. 225 of 2010 convicting the petitioner under section 138 of the Negotiable Instrument Act, 1881 and sentencing him thereunder to suffer simple imprisonment for a period of 1(one) year and to pay a fine of Tk. 6,50,000/-(six lakh and fifty thousand) should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

The prosecution case, in short, is that the informant and the accused petitioner are full brothers. The complainant is a businessman and the accused Abu Sayed Sheikh took loan of Tk. 6,50,000 from the complainant. When the complainant demanded to the accused to pay the loan, the accused issued cheque No. 0201963 on 7.01.2009 drawn on his Account No. 1532 maintained with the City Bank Ltd, Khulna Branch. The complainant presented the said cheque on 11.01.2009 for encashment through Agrani Bank Ltd, Farazipara Branch, Khulna and the cheque was dishonour on 13.9.2009. After that, he issued a legal notice on 22.01.2009 through registered post with AD upon the accused which was received by the accused on 01.02.2009 but the accused did not pay the cheque amount. Consequently, he filed the case on 3.03.2009.

After filing the complaint petition, the complainant was examined under section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate was pleased to take cognizance of the offence against the accused under section 138 of the Negotiable Instrument Act, 1881. Thereafter, the case record was sent to the Sessions Judge, Khulna for trial which was registered as Session Case No. 225 of 2010. Thereafter, the case was transferred to the Joint Sessions Judge, Court No.1, Khulna for trial.

During trial, charge was framed under Section 138 of the Negotiable Instruments Act, 1881 against the accused which was read over and explained to the accused and he pleaded not guilty to the charge. Prosecution examined 02 witnesses to prove the charge against the accused. After examination of the prosecution witnesses, the accused was examined under section 342 of the Code of Criminal Procedure, 1898 and the accused declined to examine any DW. After concluding trial, the trial court by judgment and order dated 11.3.2013 convicted the accused and sentenced him as stated above against which he filed Criminal Appeal No. 103 of 2013 before the Metropolitan Sessions Judge, Khulna. On transfer, the Additional Metropolitan Sessions Judge, Khulna heard the appeal and affirmed the judgment and order passed by the trial court against which he filed the instant appeal.

P.W. 1 Md. Rezaul Karim Sheikh is the complainant. He stated that accused issued a cheque on 7.01.2009 in his favour which was dishonoured on 13.01.2009. After that, he served legal notice on 21.01.2009 and the accused received the said notice on 01.02.2009 but he did not pay the cheque amount. Consequently, he filed the case. He proved the complaint petition and his signature as exhibit-1 series, the di