IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No. 2572 of 2021

Md. Haris Ali

.... convict-appellant-petitioner

-Versus-

The State and another

.... opposite-parties No one appears

.... For the petitioner

Mr. Md. Shofiul Aziz, Advocate

…. For the opposite party No.2

Heard on 29.10.2023 and Judgment on: 02.11.2023

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 30.10.2019 passed by the learned Additional Sessions Judge, 1st Court, Sylhet in Criminal Appeal No. 133 of 2019 dismissing the appeal and thereby upholding the judgment and order of conviction and sentence dated 18.02.2016 passed by the learned Joint Sessions Judge, 1st Court, Sylhet in Sessions Case No. 290 of 2015 arising out of C.R. Case No.16 of 2015 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. 2,40,000/- 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 the convict-petitioner for a period of 01(one) year and stayed the realization of fine till disposal of the Rule.

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 being No. IBE 7833902, dated 06.10.2014 in favour of complainant opposite party to payout the loan liability amounting of Taka 1,20,000/- ( One Lac Twenty Thousand only) the complainant deposited the same for encashment to the concern bank. But which was dishonored due to insufficient fund on 09.10.2014. Thereafter, the complainant issued a legal notice through his lawyer on 23.07.2012 requesting the petitioner to pay the said cheque amount within 30 (thirty) days. But the petitioner did not take any step to refund the aforesaid money. For this reason, the complainant- opposite party No.2 finding no other alternative filed a

complaint-petition under Section 138 of the Negotiable Instrument Act, 1881 against the petitioner before the learned Judicial Magistrate, 1st Court, Sylhet on 08.01.2015.

The learned Judicial Magistrate after receiving the petition of complaint examined the complainant under Section 200 of the Code of Criminal Procedure, 1898 and took cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 as well as registered the petition of complaint as C.R. Case No.16 of 2015 accordingly issued summon against the convict petitioner. On 01.03.2015 the convict-petitioner voluntarily surrendered before the Judicial Magistrate, 1st Cour, Sylhet and obtained bail.

In the meantime, it was transferred to the Court of learned Sessions Judge, Sylhet for trial and disposal and the learned Sessions Judge registered the case as Sessions Case No. 290 of 2015. Thereafter the case record has been further transferred before the Court of learned Joint Sessions Judge, 1st Court, Sylhet for trial. On 04.07.2015 the learned Joint Sessions Judge, 1st Court, Sylhet framed charge against the petitioner under section 138 of the Negotiable Instruments Act, 1881 and the charge could not be read over to the accused-opposite party No.1 for his absconding.

The learned Joint Sessions Judge, 1st Court, Sylhet examined the complainant as PW1 to prove the prosecution case, but defence examined none.

After closing the prosecution witness, the learned trial Court did not examine the convict petitioner under Section 342 of the Code of Criminal Procedure for his absconsion.

After hearing the parties and considering the evidence on record, the learned Joint Sessions Judge, 1st Court, Sylh