IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Revision No.3344 of 2022

Md. Ashraful Islam

.... complainant-petitioner -Versus-

Md. Lutfor Rahman and another

.... opposite parties Mr. Qazi Zahed Iqbal, Advocate

.... For the petitioner

Mr. Md. Tarikul Islam, Advocate

…. For the opposite party No.2

Heard on 15.10.2023 and Judgment on: 18.10.2023

Md. Kamrul Hossain Mollah.J:

This is an application filed by the petitioner 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 19.07.2022 passed by the learned Additional Metropolitan Sessions Judge, Khulna in Metropolitan Criminal Appeal No.73 of 2021 allowing the appeal and thereby acquitted the opposite party No. 2 by setting aside the judgment and order of conviction and sentence dated 04.02.2021 passed by the learned

Joint Metropolitan Sessions Judge, 2nd Court, Khulna in Metropolitan Sessions Case No.604 of 2016 arising out of Daulatpur C.R. Case No. 370 of 2015 under section 138 of the Negotiable Instrument Act, 1881 convicting the opposite party No. 2 under section 138 of the Negotiable Instrument Act, 1881 and sentenced him to suffer simple imprisonment for a period of 06(six) months and to pay a fine of Tk. 40,00,000/- (forty lac) of the cheque amount 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 the opposite party No. 2 is directed to surrender before the concerned Court within a period of 15 days from the date of receipt of the order, failing which the concerned Court below is directed to secure him arrest and enlarged him on bail to the satisfaction of the concerned Court below.

The relevant facts necessary for disposal of the Rule are

as follows:-

The prosecution case in short is that the opposite party No.02 gave a cheque to the complainant petitioner being No. C8052276 on 02.08.2015 on the current account No. 2412901023943 maintain by him with Pubali Bank Limited, Daulotpur Branch, Khulna of Tk.40,00,000/- (forty lac) the complainant-petitioner presented the cheque in the same bank for encashment, but the cheque was dishonoured on 22.05.2018 for insufficient fund in the account. The complainant-petitioner made a demand for the payment of the cheque amount of money by giving the appellant a legal notice by publishing notice in the daily Bhorer Dak dated 15.09.2015, but he did not pay said amount of cheque. For this reason, the complainant- petitioner filed a complaint-petition before the learned Metropolitan Magistrate Court, Khulna against the acquitted- opposite party No.2 on 18.10.2015.

After filing the complaint petition the learned Metropolitan Magistrate Court took cognizance under section 138 of the Negotiable Instruments Act, 1881 as C.R. Case No.370 of 2015 against the opposite party No.02 and the opposite party No. 02 enlarged bail of this instant case.

The case was transferred to the learned Metropolitan Sessions Judge, Khulna for trail and it was renumbered as Metropolitan Sessions Case No. 604 of 2016 and the case was

also transferred to the learned Joint Metropolitan Sessions Judge, 2nd Court, Khulna for disposal.

On 14.11.2016 the learned trial Court was framed charge of this instant case against the opposite party No.02 under Section 138 of the Negotiable Instruments Act, 1881. The charge so framed was read over and explained to the convict- petitioner to which he pleaded not guilty and claims to be tried. Thereafter, during the period of trial, the prosecution produce 0ne witness as P.W.1 and defence examined 03 D.Ws.

After conclusion of the trial the opposite party No.2 was examined under section 342 of the Code of Criminal Procedure and he claimed himself innocent.

The learned Judge of the trial Court