Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 217 of 2021

Md. Abdul Hai

...Convict-petitioner

-Versus-

The State and another

...Opposite parties

No one appears.

...For the convict-petitioner

Mr. Md. Zishan Mahmud, Advocate

...For the complainant-opposite party No. 2 Heard on 12.05.2024 and 14.05.2024

Judgment delivered on 21.05.2024

On an application filed under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898 Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 04.01.2021 passed by Additional Sessions Judge. Court No. 3, Cumilla in Criminal Appeal No. 517 of 2017 affirming the judgment and order of conviction and sentence dated 20.04.2017 reducing the sentence to 3(three) months in place of 01(one) year simple imprisonment and a fine of Tk. 2,50,000(two lakh fifty thousand) passed by the Joint Sessions Judge, Court No. 2, Cumilla in Session Trial Case No. 24 of 2016 arising out of C.R. Case No. 844 of 2015 (Kotwali) convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 should not be set aside and/or such other order passed as this Court may deem fit and proper.

The prosecution case, in short, is that on 04.06.2015 the accused Md. Abdul Hai issued Cheque No. SB 2430558 drawn on his Account No. 00121000557890029 maintained with United Commercial Bank Ltd for payment of Tk. 2,50,000 in favour of the complainant. The complainant presented the cheque on 07.06.2015 for encashment but the same was dishonoured with a remark ‘insufficient funds’. After that, he sent a legal notice on 18.06.2015 to the accused for payment of

the cheque amount. Although the notice was served upon the accused, he did not pay the cheque amount. Consequently, on 09.08.2015 the complainant filed the case.

After filing the complaint petition, the complainant was examined under Section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate was pleased to take cognizance of the offence against the accused under Section 138 of the Negotiable Instruments Act, 1881. The case record was sent to the Sessions Judge, Cumilla for trial and the case was registered as Sessions Trial Case No.

24 of 2016. The Sessions Judge, Cumilla sent the case to the Joint Sessions Judge, Court No. 2, Cumilla for disposal.

On 27.06.2016, the charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried following the law. The complainant examined 1(one) witness to prove the charge. The defence cross- examined P.W. 1.

After concluding the trial, the trial Court by judgment and order dated 20.04.2017 convicted the accused Md. Abdul Hai under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him thereunder to suffer imprisonment for 1(one) year and fine of Tk. 2,50,000, in default, to suffer imprisonment for 3(three) months against which the accused filed Criminal Appeal No. 517 of 2017 before the Sessions Judge, Cumilla who was pleased to transfer the same to the Additional Sessions Judge, Court No. 3, Cumilla. After hearing the appeal, the Additional Sessions Judge, Court No. 3, Cumilla by impugned judgment and order dated 04.01.2021 affirmed the judgment and order of conviction passed by the trial Court reducing the sentence to suffer imprisonment for 3(three) months and fine of Tk. 2,50,000.

P.W. 1 Md. Shahinur Islam stated that the accused issued cheque No. SB 2430558 on 04.06.2015 against the loan for payment of Tk. 2,50,000 drawn on his Account No. 0012000557890029

maintained with United Commercial Bank Ltd. The cheque was presented on 07.06.2015 for encashment but the same was dishonoured for ‘insufficient funds’. After that, the complainant issu