IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No.4245 of 2022 A. Mannan Prodhan

......convict-petitioner

-Versus-

The State and another

…... opposite-parties

No one appears

........For the convict-petitioner Mrs. Umme Masumun Nesa, A.A.G with Mr. Ashiqul Haque, A.A.G

……..For the State

Mr. Rashedul Haque, Advocate

…For the complainant-opposite party No.2

Heard on 22118.2023 and Judgment on: 23.11.2023

Md. Kamrul Hossain Mollah.J:

This is an application under Section 439 read with section 435 of the Code of Criminal Procedure. This Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 27.09.2022 passed by the learned Sessions Judge, Narayanganj in Criminal Appeal No.241 of 2022 dismissing the appeal and affirming the judgment and order of conviction and sentence dated 28.06.2022 passed by the learned Joint Sessions Judge, 1st Court, Narayanganj in Sessions Case No.418 of 2020 arising out of C.R. Case No.707 of 2019 convicting the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 06(six) months and also to pay a fine of Tk.5,00,000/- (five lac) 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.

At the time of issuance of the Rule this Court granted bail to the convict-petitioner for a period of 01(one) year and stayed the realization of fine.

The relevant facts necessary for disposal of the Rule are as

follows:-

The prosecution case, in short is that the convict- petitioner has given a cheque of Tk.5,00,000/- (five lac) being Cheque No.AIB/CD A7565403 dated 26.10.2018, Account No.0381020014521, Al Arafa Islami Bank Limited, Narayanganj Branch, Narayanganj to the complainant for loan. On 24.04.2019 the complainant deposited the said cheque to the concerned Al-Arafah Islamic Bank Limited, Narayanganj Branch, Narayanganj for encashment, but the same was dishonoured due to insufficient of fund. On 09.05.2019 the complainant issued a notice under section 138 of the Negotiable

Instruments Act, 1881 to the convict-petitioner through his lawyer for payment of Tk.5,00,000/- within 30 days, but the convict-petitioner failed to make payment of the said amount to the complainant. Thereafter, the complainant filed the petition of complaint on 18.06.2019 under section 138 of Negotiable Instruments Act, 1881 before the learned Senior Judicial Magistrate, Narayanganj against the convict-petitioner and hence the case.

The learned Senior Judicial Magistrate, Naraynaganj examined the complainant under section 200 of the Code of Criminal Procedure and took cognizance against the convict- petitioner under section 138 of the Negotiable Instruments Act, 1881 as C.R. Case No.234 of 2017 and issued summons against him. The convict-petitioner surrendered before the concerned Senior Judicial Magistrate, Narayanganj on 30.10.2019 with a prayer for bail and obtained bail. Thereafter, this case was sent to the learned Sessions Judge Court, Narayanganj for trial, where the case was registered as Sessions Case No.418 of 2020. The learned Sessions Judge, Narayanganj after taking cognizance on 11.02.2020 transferred the case to the learned Joint Sessions Judge, 1st Court, Narayanganj for trial and

disposal. Later on 06.12.2020 charge was framed against the convict-petitioner under section 138 of the Negotiable Instruments Act, 1881. The charge so framed was read over and explained to the convict-petitioner to which he pleaded not guilty and desired to face trial. The prosecution examined 01(one) witness as P.W.1. After examination of the witness the convict-petitioner was not examined under section 342 of the Code of Criminal Procedure for his absconding.

The learned Joint Sessions Judge, 1st Court, Narayanganj after hearing the parties and perusing