IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No.3263 of 2022

Md. Wazir Ahmed Choudhury

......convict-petitioner -Versus-

The State and another

…...opposite-parties

Mr. Md. Abdus Saleque, Advocate

........For the convict-petitioner Mrs. Umme Masumun Nesa, A.A.G

……..For the State

Mr. Md. Mansur Rahman Sarker, Advocate ……For the complainant-opposite party No.2

Heard on 20.11.2023 and Judgment on: 21.11.2023

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 of conviction and sentence dated 01.08.2022 passed by the learned Sessions Judge, Joypurhat in Criminal Appeal No.26 of 2022 dismissing the appeal and affirming the judgment and order of conviction and sentence dated 03.01.2022 passed by the learned Joint Sessions Judge, 2nd Court, Joypurhat in Sessions Case No.29 of 2020 arising out of C.R. Case No.371 of 2019(Ka) convicting the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 01(one) year and also to pay a fine of Tk.7,90,977/-, 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 06(six) months 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 issued a cheque for paying the loan amount of Tk.7,80,977/- in favour of the complainant on 28.07.2019 and the complainant deposited the said cheque for encashment to the concerned bank, but it was dishonoured for insufficient fund on 29.07.2019 and on 30.07.2019 the complainant sent a legal notice and on 31.07.2019 the convict-petitioner received the said notice, but did not pay the due amount. Thereafter, the complainant finding no other alternative filed a complaint- petition against the convict-petitioner under section 138 of the Negotiable Instruments Act, 1881 before the learned Judicial Magistrate, Amoli Adalat ‘Uma’ Anchol, Joypurhat on 04.09.2019.

The learned Judicial Magistrate, Amoli Adalat ‘Uma’ Anchol, Joypurhat upon receiving the petition of complaint examined the complainant under section 200 of the Code of Criminal Procedure and took cognizance against the petitioner under section 138 of the Negotiable Instruments Act, 1881 as C.R. Case No.371 of 2019(Ka) and issued summon against him and on 11.11.2019 the convict petitioner voluntarily surrendered before the learned Judicial Magistrate, Amoli Adalat ‘Uma’ Anchol, Joypurhat and obtained bail. The case was transferred to the learned Sessions Judge, Joypurhat for disposal, which was renumbered as Sessions Case No.29 of 2020. The learned Sessions Judge, Joypurhat sent the same to the learned Joint Sessions Judge, 2nd Court, Joypurhat for trial and disposal. The learned Joint Sessions Judge, 2nd Court, Joypurhat framed charge against the convict-petitioner under section 138 of the Negotiable Instruments Act, 1881 on 30.01.2020, which was read over and explained to him who pleaded not guilty and claimed to be tried.

The prosecution examined only one witness as P.W.1 and the convict-petitioner examined none.

After closing the examination of the prosecution witnesses by the learned trial Court, the convict-petitioner was not examined under section 342 of the Code of Criminal Procedure, for his absconsion.

The learned Joint Sessions Judge, 2nd Court, Joypurhat after hearing the parties and perusing the evidence on record found guilty the petitioner under section 138 of the Negotiable Instruments Act, 1881 and sentenced him to suffer simple imprisonment for a period of