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Issuance of cheque amounts to admission of debt

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28th-Jan-2017       
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High Court Division :
(Criminal Appellate Jurisdiction)
Rais Uddin J
Judgment
January 10th, 2016
SM Alim and others….. Complainant-Appellant
vs
Abdul Hoque Khan and another ….Respondents
Negotiable Instruments Act (XXVI of 1881)
Section 138
Once the cheque has been issued it is admitted that the accused had dues to the complainant. This admitted position is summary in nature and there is little scope for taking defence in this particular case since the accused-respondent has admitted the dues by issuance of cheques which were dishonoured. The complainant served legal notice through his lawyer but the accused failed to arrange to pay the same.
From the scheme of the Act, it is clear that following the dishonour of a cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact that the cheque has been dishonoured for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. When the reason for return of the cheque has been mentioned as 'refer to drawe' of 'insufficiency of fund', it is primary duty of the drawer of the cheque to make payment of the amount within stipulated time from the receipt of notice. ….(13 & 12)
Md Ziaul Hoque, with Rashida Alim Advocates -For the Complainant -Appellant.
None appears -For the Respondent No.1.
Swapan Kumar Das, AAG -For the State.
Judgment
Md Rais Uddin J : This appeal is directed against the judgment and order of conviction and sentence dated 16-3-2015 passed by learned Joint Metropolitan Sessions Judge, Fifth Court, Dhaka in Metro Session Case No. 1795 of 2008, convicting the accused-appellant under Section 138 of the Negotiable Instrument Act, 1881 and sentencing him to suffer simple imprisonment for 1 (one) year.
2. The complainant filed a petition of complaint case contending inter-alia, in short, is that the complainant is a businessman and the respondent No.1 for construction of a residential building purchased cement and rod from him. As a result, the respondent No.1 had a outstanding dues of Taka 30,00,000 (thirty lacs) to the appellant. For the purpose of payment of outstanding dues the respondent No.1 issued two cheques on 15-5-2007 and 7-6-2007 being Nos. 0682459 and 0682460 drawn upon Mutual Trust Bank Limited, Panthpath Branch, Dhaka for an amount of Taka 25,00,000 and 5,00,000. The complainant-appellant has placed those 'cheques for encashment before in Al-Arafa lslami Bank on 11-7-2007 which was dishonoured due to insufficient fund. The complainant-appellant sent a legal notice but the respondent No.1 failed to pay the amount of cheque money after receiving the said notice. Hence, a petition of complaint was filed under Section 138 of the Negotiable Instrument Act on 9-8-2007.
3. The petition of complaint on transferred to the learned Sessions Judge which numbered as Sessions Case No. 1795 of 2008. The charge was framed against accused respondent No.1 on 11-11-2008 under Section 138 of the Negotiable Instrument Act, 1881 in absentia.
4. During trial the prosecution has examined as many as 1 witness and the defence examined none.
5. The learned Sessions Judge considering the evidence and materials on record found the accused-respondent No.1 guilty under Section 138 of the Negotiable Instrument Act and sentenced him as stated above.
6. Being aggrieved by the impugned judgment and order of conviction and sentence the complainant as appellant preferred the instant appeal.
7. Mr Mohammad Ziaul Hoque, learned advocate appearing for the complainant- appellant submits that the trial court has rightly found that the prosecution has been proved the charge against the accused-respondent No. 1 and thereby sentenced him to suffer for a period of 1 (one) year. He submits that although the trial court found guilty of of the accused-respondent but failed to consider that with respect to offence of dishonour of cheques and it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. He submits that the drawer of a cheque by drawing it engages that in the case of dishonour by the drawee he will compensate the holder and, as such, the learned trial court failed to consider that whenever an offence is committed by dishonor of cheque, the offender should be directed to compensate the holder of cheque and, as such, the trial court has committed illegality in not giving any order of fine of sentence. He lastly submits that the trial court while imposing sentence under the provisions of the Negotiable Instrument Act but the learned court did not take into consideration all aspects of the case including the financial loss caused to the payee or holder in due course of the cheque, the quantum of the amount involved in the cheque, time and costs consumed in the litigation and, as such, the trial court committed illegality in not awarding fine.
8. Mr Swapan Kumar Das, learned Assistant Attorney-General submits that the appeal may be disposed of in accordance with law.
9. I have gone through the memo of appeal, petition of complain, evidence and judgment of the trial court and others materials on record.
10. On perusal of the record it appears that complainant-appellant is a businessman and accused-respondent No.1 is developer and for construction of residential building purchased cement and rod from complainant-appellant and he had outstanding dues of Taka 30,00,000 (thirty lacs) to the respondent No. 1. The accused-respondent issued two cheques of Taka 30,00,000 (thirty lacs) for payment of outstanding dues which were dishonoured due to insufficient fund. The complainant-appellant served legal notice upon the accused-respondent but he failed to arrange to pay the money.
11. On perusal of the record it appears that the complainant himself was examined as PW I, who categorically stated the case of the prosecution as to payment of Taka 30,00,000 (thirty lacs) issued two cheques, served legal notice and exhibited their documents which were marked as exhibits 1-6 series.
12. However, certain conditions precedent are stipulated in the provision of Section 138(1) of the Act which are to be complied with before imposing any criminal liability to the drawer. From the scheme of the Act, it is clear that following the dishonour of a cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact that the cheque has been dishonoured for reason stated in the return memo and that he is liable for penal consequences under Section 138 read with Section 141 of the Act. When the reason for return of the cheque has been mentioned as 'refer to drawer' of 'insufficiency of fund', it is primary duty of the drawer of the cheque to make payment of the amount within stipulated time from the receipt of notice.
13. It appears to me that the proceedings under Section 138 of the Negotiable Instrument Act, once the cheque has been issued' it is admitted that the accused-respondent had dues to the complainant. This admitted position is summary in nature and there is little scope for taking defence in this particular case since the accused-respondent has admitted the dues by issuance of two cheques of Taka 30,00,000 (thirty lacs) which were dishonoured.
The complainant served legal notice through his lawyer but the accused-respondent failed to arrange to pay the same. It appears that the complainant has complied with all legal formalities as required under Section 138(1)(b) of . the Negotiable Instrument Act.
14. On close scrutiny of the evidence on record it appears to me that the impugned judgment is well reasoned and well founded but failed to consider that the accused-respondent derives pecuniary gain from the offence and, as such, he should be fined and unless imposition of fine the complainant-appellant would not able to get his dues of the cheques amount.
15. The accused-respondent has practically admitted the prosecution case that he has issued two cheques amounting of Taka 30,00,000 (thirty lacs) by filling an application on 17-6-2009. It is on record that the accused respondent issued two cheques of 30,00,000 (thirty lacs) and therefore, the learned Judge of the trial court was required to impose sentence of fine of the cheque amount to get the outstanding dues of the complainant-appellant.
16. There is wide discretion available to the court while imposing sentence under the provisions of the Negotiable Instruments Act. The court must take into consideration all aspects of the case including the financial loss caused to the payee or holder in due course of the cheque, the quantum of the amount involved in the cheque, the status of the accused as well as complainant, time and costs consumed in the litigation.
17. In view of the above discussions and reasons stated above I find merit in the appeal. Accordingly, I modify the sentence of fine imposing cheque amount of Taka 30,00,000 (thirty lacs) in the operating part with the period of sentence of imprisonment of 1 (one) year.
18. In the result, the appeal is allowed with modification of sentence of fine as stated.
Let the lower court records along with copy of the judgment be sent at once.

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