IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION) Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Appeal No.12770 of 2017

Md. Shawkat Imran

......convict-Appellant

-Versus-

The State and another

…... opposite-parties No one appears

........For the convict-Appellant

, A.A.G

……..For the State

Mr. Abdul Mannan Bhuiyan, Advocate

……For the respondent-opposite party No.2

Heard on: 09.01.2024 &

Judgment on: 11.01.2024.

Md. Kamrul Hossain Mollah.J:

This appeal has been preferred against the judgment and

order of conviction and sentence dated 16.10.2017 passed by the learned Additional Sessions Judge, 1st Court, Gazipur in Sessions Case No. 1308 of 2015 corresponding to C.R. Case No. 1206 of 2015 convicting the appellant under section 138 of the Negotiable Instrument Act 1881 and sentenced him to suffer imprisonment for 01(one) year with a fine of Tk.23,91,000/- (twenty three lakh and ninety one thousands).

The respondent No.2, as complainant filed a petition of complaint under section 138 of the Negotiable Instrument Act, 1881 before the learned Chief Judicial Magistrate, Gazipur.

The prosecution case, in short, is that the convict-appellant being proprietor of Style Taylors and Fabrics used to purchase rod and cement from the wholesale shop of the respondent No.2. In this way appellants outstanding payment became 11,95,500 (taka eleven lakh ninety five thousand and five hundred). While the respondent No.2 requested the appellant seeking repayment of the said loan amount, the appellant has issued a cheque being No. 1536364 amounting Tk. 10,00,000/- (ten lakh) and another cheque being No. 1536365 of amounting Tk. 1,95,500(one lakh ninety five thousands) both dated 19.03.2015, from appellants savings Account No. 0000000000300, account name: Style Fabrics and Taylors of Uttara bank Ltd., BKSP Branch. The complainant then deposited the said cheques for encashment in the Southeast Bank Ltd., BKSP branch on 06.07.2015 which was then returned by the bank unpaid due to insufficient fund. Thereafter, the complainant issued 02 separate legal notices on 17.07.2015, but the convict-appellant did not respond of those notices. Afterwards, the complainant filed a petition of complaint against the instant appellant under section 138 of the Negotiable Instrument Act, being C.R. Case No. 1206 of 2015 dated 24.08.2015.

The learned Chief Judicial Magistrate, Sherpur recorded the statement of complainant under section 200 of the Code of Criminal Procedure and took cognizance against the accused- convict-appellant under section 138 of the Negotiable Instruments Act, 1881 and issued a summon upon the convict- appellant. Thereafter, the convict-appellant voluntarily surrendered before the learned trial Court along with a prayer for bail and he was enlarged on bail.

Subsequently, the instant case was transferred to the learned Sessions Judge, Gazipur for trial and it was renumbered as Sessions Case No.1308 of 2015 and the learned Sessions Judge transferred the case to the Additional Sessions Judge Court, 1st Court, Gazipur who after hearing framed charge against the convict-appellant under section 138 of the Negotiable Instrument Act, 1881 and the charge was read over to the convict-appellant whom he pleaded not guilty and claimed to be tried.

The prosecution has examined only 01(one) witness in the trial Court to prove the case and defence examined none and the convict appellant had also been examined under section 342 of Code of Criminal Procedure in which he once again pleaded not guilty thereto and claimed to be tried.

After considering all the evidence on record and deposition of the witness, the learned Additional Sessions Judge, Gazipur passed the judgment and order of conviction and sentence on 16.10.2017, convicting the appellant under section 138 of the Negotiable Instrument Act, 1881 and sentencing him to suffer imprisonment for 01(one) year with a fine of Tk. 23,91,000/-( twenty three lakh and