Present

Madam Justice Kashefa Hussain

Criminal Revision No. 360 of 2023

Md. Masudur Rahman

...... Convict-petitioner -Versus-

The State and another

------- Opposite parties

Mr. Md. Ahsan with

Mr. Balayet Hossain, Advocates

.... for the convict-petitioner Mr. Mizanul Hoque Chowdhury with

Mr. A.M. Jamiul Hoque Faysal, Advocate

.... for the opposite parties Mr. Md. Abdul Aziz Miah, D.A.G with

Ms. Syeda Sabina Ahmed Molly, A.A.G

------- For the State.

Heard on: 14.06.2023, 18.07.2023, 26.07.2023 and

Judgment on 02.08.2023

Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 20.11.2022 passed by the learned Additional Sessions Judge, 7th Court, Dhaka in Metro. Criminal Appeal No. 537 of 2022 dismissing the appeal and affirming the judgment and order of conviction and sentence dated 04.04.2022 passed by the learned Metropolitan Joint Sessions Judge, 5th Court, Dhaka in Metro. Sessions Case No. 4237 of 2014 arising out of C.R. Case No. 2268 of 2013 convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for 6(six) months and also to pay a fine of Tk. 25,00,000/- 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 instant complainant as opposite party No. 2 Actual Homes Ltd. Filed Metro Sessions Case No. 4237 of 2014 arising out of C.R. Case No. 2268 of 2013 in the court of Metropolitan Joint Sessions Judge, 5th Court, Dhaka with allegation under Section 138 of the Negotiable Instrument Act, 1881 against the instant accused convict instant petitioner here inter alia with allegation of cheque dishonor. The trial court upon hearing the parties convicted the petitioner sentencing him to suffer simple imprisonment for 6(six) months and to pay a fine of Tk. 25,00,000/- (twenty five lacs) by its judgment and order of conviction and sentence dated 04.04.2022. Being aggrieved by the judgment and order of conviction and sentence passed by the trial court the accused convict petitioner filed Criminal Appeal No. 537 of 2022 which was heard by the Additional Sessions Judge, 7th Court, Dhaka. The Appellate Court upon hearing the parties dismissed the appeal by its judgment dated 20.11.2022 and thereby affirmed the judgment of sentence and conviction passed by the trial court earlier. Being aggrieved by the judgment dated 20.11.2022 the convict petitioner filed Criminal Revision which is presently before this court for disposal.

The complainant’s case inter alia is that the convict petitioner issued one cheque against on amount of Tk. 25,00,000/- (twenty five lacs) in the name of complainant opposite parties No. 2 being account No. 1525101410800001, Cheque No. SSD 1559278 of BRTAC Bank Ltd. Mentioning 25,00,000/- (twenty five lacs) taka dated 23.09.2013. That alleged cheque was deposited for encashment but returned as dishonored on ground of insufficient fund. That thereafter, the complainant sent a legal notice on 08.10.2013 for depositing the said amount within 30 days but convict petitioner did not pay back the sum and hence the case was filed.

Learned Advocate Mr. Md. Ahsan along with Mr. Balayet Hossain appeared for the convict petitioner while learned advocate Mr. Mizanul Hoque Chowdhury along with Mr. A.M. Jamiul Hoque Faysal represented the respondent- opposite party No. 2.

Learned Advocate for the accused petitioner submits that both courts below upon misappraisal of facts and evidences on record and upon misinterpretation of the law came upon wrong finding and those are not sustainable and ought to be set aside. He submits that both courts, wrongly found that the accused was absconding during trial. To controvert the findings of the courts he points out to several orders from the lower court records. He agitates that these orders clearly manifest that the accused convict petitioner was not absconding since these orders clearly show that he