IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No. 2504 of 2022

Nargis Begum

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

The State and another

…...opposite-parties

No one appears

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

…….. For the State

Mr. Muhammad Ali Akkas, Advocate

……For the complainant-opposite party No.2

Heard and Judgment on: 30.08.2023

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 29.05.2022 passed by the learned Sessions Judge, Chapainawabganj in Criminal Appeal No.196 of 2022 dismissing the appeal and affirming the judgment and order of conviction and sentence dated 24.10.2021 passed by the learned Joint Sessions Judge, 2nd Court, Chapainawabganj in Sessions Case No.666 of 2020 arising out of C.R. Case No.816 of 2018 convicting the petitioner under section 138(1) 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.3,17,437/-, 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.

The relevant facts necessary for disposal of the Rule are as

follows:-

The prosecution case, in short is that on 08.08.2018, the convict-petitioner gave a cheque being Mudaraba Saving Account Number-51237, Account’s MSP-6627613, Cheque amount Tk.3,17,437/- and that cheque was dishonoured on the same dated 08.08.2018 with the opinion that the account is insufficient Fund. Thereafter, on 13.08.2018, a legal notice has been served on the convict-petitioner and on 19.08.2018 that legal notice has been received by the convict-petitioner’s husband. But the convict-appellant did not pay the cheque amount and on the basis of the said information the complainant filed the instant case against the convict-petitioner under section 138 of the Negotiable Instruments Act, 1881 before the learned Amoli Adalat, Chapainawabganj Sadar, on 4.10.2018 and hence the case.

The learned Magistrate, Chapainawabganj 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.816 of 2018 and issued summon against him and the convict petitioner voluntarily surrendered before the learned Magistrate, Chapainawabganj and obtained bail. Thereafter, the case was ready for trial and transferred to the learned Sessions Judge, Chapainawabganj for trail and renumbered as Session Case No.666 of 2020. After receiving the case record the learned Joint Sessions Judge, 2nd Court, Chapainawabganj framed charge against the convict-petitioner under section 138 of the Negotiable Instruments Act, 1881 on 07.02.2021, which was read over 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 prosecution witnesses by the learned trial Court, the convict-petitioner was not possible to examined by the trial Court under section 342 of the Code of Criminal Procedure due to his abscission.

The learned Joint Sessions Judge, 2nd Court, Chapainawabganj 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 06(six) months and also to pay a fine of Tk.3,17,437/- by his judgment and order of conviction and sentence dated 24.10.2021.

Thereafter, t