Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 3513 of 2023 Md. Amir Hossain

...Convict-appellant-petitioner

-Versus-

The State and another

...Opposite parties

Mr. Sk. Sharifuddin, Advocate with

Mr. S.M. Rezaul Karim, Advocate

...For the convict-appellant-petitioner Mr. Abdus Salam Mamun, Advocate with

Mr. A.B.M. Shibly Sadekeen, Advocate

...For the complainant-opposite party No. 2 Heard on 30.01.2024, 04.02.2024, 06.02.2024, 20.02.2024, 29.04.2024, 30.04.2024, 08.05.2024 and 09.05.2024

Judgment delivered on 19.05.2024

This Rule under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898 was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 31.07.2023 passed by Sessions Judge, Barisal in Criminal Appeal No. 705 of 2022 allowing the appeal in part and modifying the judgment and order of conviction and sentence dated 13.09.2022 passed by Joint Sessions Judge, Court No. 1, Barisal in Session Case No. 231 of 2006 arising out of C.R. Case No. 276 of 2005 (Sadar Thana) convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to pay fine of Tk. 10,72,015 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The prosecution case, in short, is that the accused Md. Amir Hossain took a loan from the Al Arafah Islami Bank Limited, Barisal Branch. Subsequently, on the application of the accused, the loan was rescheduled on 30.09.2002 on the condition that he would pay the said loan in 84 equal instalments. On 15.01.2005, the accused issued cheque Nos. 8389161, 8389162, 8389163, 8389164, 8389165, 8389166 and 8389167 putting the dates on 24.01.2005, 31.01.2005, 07.02.2005, 14.02.2005, 22.02.2005, 28.02.2005 and 08.03.2005 respectively on the cheques for payment of Tk. 1,53,145 each, total Tk. 10,72,015 in favour of the complainant bank. The complainant bank presented those cheques on the date mentioned in the cheques which were dishonoured with the remark ‘insufficient funds’. The matter of dishonour was informed to the accused and he requested the bank to present the first cheque after 6 months, the second cheque after three weeks, the third cheque after four weeks, the fourth cheque after three weeks, the fifth cheque after two weeks, sixth cheque after one week and seventh cheque after two weeks. The complainant bank presented those cheques on 10.03.2005 and finally on 17.03.2005 which were dishonoured with the remark ‘insufficient funds’. The complainant bank sent a notice under Section 138 of the Negotiable Instruments Act, 1881 on 19.03.2005 to the accused. Despite the notice served upon the accused under Section 138 of the Negotiable Instruments Act, 1881 for payment of Tk. 10,72,015, he did not pay the cheque amount. Consequently, the bank filed the case on 26.04.2005 through its Officer P.W. 1 Md. Mostafizur Rahman against the accused under Section 138 of the Negotiable Instruments Act, 1881.

After filing the complaint petition, the complainant Md. Mostafizur Rahman, an Officer of the Al-Arafah Islami Bank Limited, was examined under Section 200 of the Code of Criminal Procedure, 1898 and the leaned Magistrate was pleased to take cognizance of the offence under Section 138 of the said Act against the accused. On 25.10.2005, the accused Md. Amir Hossain voluntarily surrendered before the learned Magistrate and obtained bail. After that, the case was sent to the Sessions Judge, Barisal and was registered as Session Case No. 231 of 2006 and by order dated 13.11.2006, the Sessions Judge, Barisal sent the case to the Assistant Sessions Judge, Court No. 1, Barisal for trial. On 12.02.2007 charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over and explained to the accused