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Death of accused appellant does not affect the entire judgment

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12th-May-2018       
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High Court Division  :
(Criminal Appellate Jurisdiction)
Md Rais Uddin J
MA Motin ………….
...... . Accused-Appellant
vs
State ………Respondent'"
Judgment    
February 14th, 2017  
Code of Criminal Procedure (V of 1898)
Section 431
An Appeal against a sentence of fine shall not abate by reason of death of the accused-appellant because it is not a matter which affect his person but on which affect his estate. Hence part of the appeal which relates to the sentence of imprisonment shall abate on the death other accused-appellant but other part relating the sentence of fine shall not abate. The balance dues of the cheque amount are recoverable and shall be realized from the estate of the deceased accused appellant.
Nazma Begum vs Md Habibullah, 57 DLR 603 ref.
Qazi Zahed Iqbal, Advocate-For the Accused-Appellant.
Ishrat  Hasan, Advocate-For the Complainant-Respondent.
Shafiul Bahsar Bhandary, DAG with Swapan Kumar Das, AAG-For the State .
Judgment
This appeal is directed against the judgment and Order of conviction and sentence dated 30-6-2014 passed, by the learned Metropolitan Sessions Judge, Dhaka in Metropolitan Sessions Case-No. 11057 of 2013 arising out of CR Case No. 6395 of 2009 convicting the accused-appellant under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to pay a fine of Taka 1,42,00,000 (One crore and forty two lacs) and in default of which to suffer 1 (one) year simple imprisonment.
2. The prosecution case, in short, is that respondent No. 2 as complainant filed a petition of complaint before the learned Chief Metropolitan Magistrate, Dhaka on 6-12-2009 against the appellant and another under section 138 of the Negotiable Instruments Act, 1881 alleging inter alia that on 29-9-2009 the accused appellant issued a cheque of Taka 1,42,00,000 (One crore and forty one lacs), being No. 0730961, dated 29-9-2009, Standard Bank Ltd, Dhanmondi Branch in favour of the complainant to pay complainant's part payment arising due to the service rendered to the appellant-petitioner's company, but the cheque was dishonoured on 1-10-2009 due to insufficient fund. The complainant sent a legal notice to the appellant through his lawyer on 18-10-2009 by stating the incident and with a demand to pay the same but the said legal notice lastly returned on 21-10-2009 due to the accused-appellant's non-availability on his address and, therefore, the appellant did not take any initiative in this regard. Hence, the case.
3. Upon receipt of the petition of complaint the learned Chief Metropolitan Magistrate examined the complain under section 200 of the Code of Criminal Procedure and took cognizance against the accused appellant and another under section 138 of the Negotiable Instruments Acl, 1881.
4. The case record was transferred to the learned Metropolitan Sessions Judge, Dhaka where it was numbered as Metropolitan Session Case No. 11057 of 2013 for trial. The learned Judge of the trial court framed charge against the accused-appellant and another under section 138 of the Negotiable Instruments Act, 1881 to which he pleaded not guilty and claimed to be tried.
5. At the trial, the prosecution has examined 1 (one) witness while the defence examined 1 (one) witness to prove their respective cases.
6. On conclusion of trial the learned Judge of the trial court considering the evidence and materials on record found the accused appellant and another guilty under section 138 of the Negotiable Instruments Act and Sentenced him as stated above.
7. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the accused-appellant preferred the instant appeal.
8. Mr Qazi Zahed Iqbal, the learned Advocate for the, accused-appellant at the very outset by filing supplementary affidavit informed this court that the accused appellant MA Matin son of Mowlana Momtaz Uddin died on 29-1-2016 and as such he prayed that the appeal is abated.
9. Mrs. Ishrat Hasan, the learned Advocate appearing for the complainant respondent submits that although after death of the accused-appellant the appeal has abated only on imprisonment of sentence. She submits that the sentence of fine is recoverable from heirs, successor of the deceased accused appellant and the property of Unicom International Ltd. House No. 50, Flat No. 1/ A, Road No. 3/1 Dhanmondi Police Station, Dhanmondi, District-Dhaka since he was Managing Director of the Company.
She submits that the deceased appellant was Managing Director of the Company and chairman of the company are responsible to pay the dues since he was in-charge and holding the position of managing director of the company as per section 140 of the Negotiable Instruments Act, 1881. In support of her contention has refused a decision report in 57 DLR 603.
10. Mr Swapan Kumar Das, the learned Assistant Attorney-General has supported the contention of the complainant-respondent.
11. I have gone through the memo of appeal, petition of complaint, evidence, judgment of the trial court and other materials on record and relevant provision of law.
12. On perusal of the record it appears that the accused- appellant issued a cheque of Taka. 1 crore 41 lacs in favour of the complainant. The complainant deposited the cheque for encashment which was dishonoured for insufficient of fund.
The complainant served legal notice upon the accused-appellant but he did not arrange to pay the money. It appears that the complainant was examined as P.W.! who categorically stated as to issuance of cheque of Taka. 1 crore 41 lacs by the accused appellant which was dishonoured for insufficient of fund.
The complainant served legal notice but the accused-appellant did not arrange to pay the money and exhibited his documents.
13. However, certain condition precedents 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 issued 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' or '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.
14. Now, certain provisions of law under section 138 of the Negotiable Instruments Act, 1881 are required to be referred to for having a better view of the dispute in question:
Section 138 of sub-sections 2 and 3:
"Where any fine is realised under subsection (I), any amount up to the face value of the cheque as far as is covered by the fine realised shall be paid to the holder.
Notwithstanding anything contained in sub-sections (1) and (2), the holder of the cheque shall retain his right to establish his claim through civil Court if whole or any part of the value of the cheque remains unrealized."
15. From a combined reading of the above quote provisions of law it appears that the fine realized shall be paid to the holder and holder of the cheque shall retain his right to establish his claim through civil court if whole or any part of the value of the cheque remain unrealized.
16. On perusal of the supplementary affidavit filed by the learned advocate for accused-appellant it appears that the accused appellant died on 29-1-2016 as such the Criminal Appeal abates on the death of the accused-appellant.
An Appeal against a sentence of fine shall not abate by reason of death of the accused-appellant because it is not a matter which affect his person but on which affect his estate. Hence part of the appeal which relates to the sentence of imprisonment shall abate on the death other accused-appellant but other part relating the sentence of fine shall not abate. The balance dues of the cheque amount are recoverable and shall be realized from the estate of the deceased accused appellant.
17. This view find support in the case of Khalilur Rahman being dead his heirs Mrs Nazma Begum vs Md Habibullah, reported in 57 DLR 603, wherein their lordships held:
"During pendency of the Rule the convicted accused petitioner Khalilur Rahman died and ultimately under the provisions of section 431 of the Code of Criminal Procedure the case abates against him so far it relates to his sentence of imprisonment only but regarding imposition of fine to the tune of Taka 20,00,000 (twenty lakh) the impugned judgment passed by the courts below remains under challenge since the heirs of the convicted accused petitioner Late Khalilur Rahman have impleaded themselves as petitioner because such fine is to be realised from the deceased's estate, now vested to them."
18. In the result, the appeal is abated so far relates to the imprisonment. The impugned judgment and order of conviction and sentence 30-6-2014 so far relevant to the fine passed by the learned Metropolitan Sessions Judge, Dhaka in Metropolitan Sessions Case No. 11057  of 2013 arising out of CR Case No. 6395 of 2009 ref. is affirmed.
19. The  complainant-respondent  is allowed to withdraw the 50% of the cheque amount which has been deposited by the accused-appellant at the time of filing appeal in the trial Court through chalan within 1 (one) month from the date of receipt of this judgment.
20. The balance dues of the cheque amount are recoverable and shall be realised [Will the estate of the deceased accused-appellant in accordance with law.
Let the subordinate court records along with copy of this judgment be sent to the Court below at-once.

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