IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Kamrul Hosssain Mollah

Criminal Appeal No.10971 of 2016 Amirul

......convict-Appellant -Versus-

The State and another

…... -respondents

None appears for both the parties. Mrs. Aleya Khandker, A.A.G and

Mrs. Umme Masumun Nesa, A.A.G ……..For the State

Heard on and judgment on:10.08.2023

Md. Kamrul Hossain Mollah.J:

This appeal has been preferred against the judgment and

order dated 14.08.2016 passed by the learned Additional Sessions Judge, Magura in Sessions Case No.407 of 2015 arising out of C.R. No.443 of 2015 convicting the appellant under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for 03 (three) months and with a fine of tk.60,000/- (sixty thousand) only.

The prosecution case, in short is that, the convict- appellant issued a cheque in favour of the complainant of Tk.60,000 /- (sixty thousand) on 23.06.2015. But on the same

date the said cheque was dishonoured by the concerned Bank due to insufficient fund. Thereafter, on 02.07.2015, the complainant served a legal notice to the convict appellant to pay the cheque amount within 30 days, the accused received the same on 08.07.2015 but the appellant did not pay the same and, as such, the accused committed offence under section 138 of the Negotiable Instrument Act, 1881.Hence the case.

The learned Senior Judicial Magistrate, 1st Court, Magura examined the complainant under section 200 of the Code of Criminal Procedure and took cognizance of the offence against the accused-convict-appellant under section 138 of the Negotiable Instruments Act, 1881 and issued summon against the convict-appellant on 26.08.2015.

On 13.10.2015, the convict appellant appeared before the concerned Court with an application for bail which was allowed by the trial Court accordingly.

Subsequently, the instant case was transferred to the learned Sessions Court, Magura for trial and it was renumbered as Sessions Case No. 407 of 2015 and the case was sent to the Court of Additional Sessions Judge, Magura for concluding trial.

Thereafter, the learned Additional Sessions Judge, Magura framed charge against the convict-appellant under section 138 of the Negotiable Instrument Act, 1881 vide his order dated 09.02.2016 and it was read over to the convict- appellant but he pleaded not guilty and claimed to be tried.

The prosecution has examined only 01(one) witness i.e. P.W.1 in the trial Court to prove the case and defence examined none. It was not possible to examine the convict appellant under section 342 of Code of Criminal Procedure as he was absconding.

After considering all the evidence on record and deposition of the witness, the learned Sessions Judge, Magura convicted the appellant under section 138 of the Negotiable Instrument Act, 1881 and sentencing him to suffer simple imprisonment for 03(three) months with a fine of Tk.60,000/- (sixty thousand) only vide his judgment and order dated 14.08.2016.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction, the convict-appellant preferred this Appeal before this Court.

None appeared to press or oppose the instant appeal although it has appeared in the daily cause list with the names of the learned Advocates. However, considering the long pendency of the of the same, it has been taken up for disposal on merit.

Now, let us discuss the evidence of prosecution witness.

P.W.1 Md. Zihad Ali, complainant of the case stated in his chief that the convict-appellant issued a cheque of amounting Tk.60,000/- on 23.06.2015 from his account. On 23.06.2015, he deposited the said cheque before the concerned bank for encashment but the cheque was dishonored due to insufficient funds on the same date. Thereafter, he sent legal notice to the convict-appellant on 02.07.2015 and the convict- appellant received it on 08.07.2015 though the convict appellant did not pay the