Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 3153 of 2023

Swadin Hasan Selim

...Convict-petitioner

-Versus-

The State and another

...Opposite parties

Mr. Md. Aktarujjaman, Advocate

...For the convict-petitioner

Mr. Mohammad Abul Kashem Bhuiyan, Advocate

...For the complainant-opposite party No. 2 Heard on 09.06.2024 and 02.07.2024

Judgment delivered on 10.07.2024

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 judgment and order dated 10.07.2023 passed by the Additional Sessions Judge, Court No. 2, Tangail in Criminal Appeal No 284 of 2022 affirming the judgment and order of conviction and sentence dated 10.04.2022 passed by the Joint Sessions Judge, Court No. 2. Tangail in Session Case No.777 of 2021 arising out of Complaint Register (C. R.) Case No. 13 of 2021 (Ghatail) convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him thereunder to suffer simple imprisonment for 1 (one) year and a fine of Tk. 20,00,000 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 prosecution case, in short, is that the complainant A.K.M Masud Khan is a businessman and former Chairman of Sandhanpur Union Parishad and the accused Swadin Hasan Selim is his neighbour and also a relative. The accused is the proprietor of Messers Akash Bricks Field and Titas Bricks Field. On 12.10.2018 the accused came to the house of the complainant and received Tk. 43,00,000(forty-three lakh) in advance to supply total 716666 pieces of bricks within the first of April, 2019 but he did not supply the bricks. The accused issued Cheque No. GaChha 0635575 on 05.07.2020 for payment of Tk. 20,00,000 drawn on his Current Account No. 6028502000555 maintained with Sonali Bank Limited, Shaheed Salauddin Cantonment Branch for part payment of the said amount. The complainant presented the said cheque on 19.11.2020 for encashment which was dishonoured with a remark ‘insufficient funds’. After that, he sent a legal notice on 25.11.2020 to the accused for payment of the cheque amount through registered post with AD but he did not pay the cheque amount. Consequently, he filed the case on 07.01.2021.

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 transferred to the Sessions Judge, Taingail and the case was registered as Session Case No. 777 of 2021. The Sessions Judge, Tangail transferred the case to the Joint Sessions Judge, Court No. 2, Tangail for trial.

During trial, the charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 which was read over and explained to him 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 examination of the prosecution witness, the accused was examined under Section 342 of the Code of Criminal Procedure, 1898 and he again pleaded not guilty. Thereafter, the defence examined one witness who was cross-examined by the complainant.

After concluding the trial, the trial Court by judgment and order dated 10.04.2022 convicted the accused Swadin Hasan Selim under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him thereunder to suffer imprisonment for 1 (one) year and a fine of Tk. 20,00,000 against which the accused filed Criminal Appeal No. 284 of 2022 before the Sessions Judge, Tangail who was pleased to transfer the case to