M.A.K. Khan Shamol Vs. The State & another

Appellate Division Cases

(Civil)

PARTIES

M.A.K. Khan Shamol…………… Petitioner.

-Vs-

The State & another………….. Respondents

JUSTICES

Mohammad Fazlul Karim J

M.M. Ruhul Amin J

Judgment Dated: 16th September 2007

The Negotiable Instrument Act, Section 138

The Code of Criminal Procedure and obtained, Section 439

Offence for dishonour of cheques under section 138 of the Negotiable Instrument

Act, …………….(2)

The High Court Division held that the Provision of Section 138 of the Negotiable

Instrument Act have been complied with before the filing of the petition of complaint. The cheques were presented to the Bank within a period of six months from the date on which it is drawn and within the period of its validity and the complainant made a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding the return of the cheques unpaid………….. (5)

The High Court Division further held that “Section 138 of the Negotiable Instrument Act provides penalties in case of dishonour of cheques for insufficiency of the funds etc. of the account. The purpose of section 138 of the Negotiable Instrument Act is to penalize the drawer in case of dishonour of cheques not only for insufficiency of funds in the account but also for other mode of stopping the payment. “Stop payment” instructions cannot obviate the liability of the drawer under section 138 of the Negotiable Instrument Act. Failure to pay after receiving notice shows dishonest intention and therefore, the offence under the section is made out. Refusal to pay because of stop payment notice is a dis-honour within the meaning of the provisions dealing with dishonour of cheques and this is so irrespective of the remarks of the Bank on the dishonour slip. The stop payment instructions amounts to dishonour of the cheque on account of fault on the part of the person who had issued the cheque On issuance of the notice by the payee or the holder in due course after dishonour to the drawer  demanding payment within 15 days from the date of the receipt of such a notice, if  he does not pay the same, the statutory presumption of dishonest intention in instructing the Bank to stop payment is I evident from the conduct of the accused and he is liable for the offence under section 138.” ………………………..(6)

Abdul Baset Majumder; Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record. …………………For the Petitioner

Respondent ……………..Not represented.

Criminal Petition For Leave To Appeal No.362 of 2006

(From the judgment and order dated 03.08.2006 passed by the High Court Division in Criminal Revision No. 1061 of 2005.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment

and order dated 03.08.2006 passed by a Single Bench of the High Court Division in Criminal Revision No. 1061 of 2005 discharging the Rule.

2. Short facts are that a petition of complaint was lodged before the Chief Metropolitan Magistrate, Dhaka on 27.02.2003 implicating the accused petitioner in the commission

of the offence for dishonour of cheques under section 138 of the Negotiable Instrument Act, alleging, inter alia, that the accused petitioner took loan from the complainant on various occasions and thereafter the accused petitioner issued three cheques one cheque dated 14.12.2002 for Tk.30,00,000/-other cheque dated 17.12.2002 for Tk.20, 00, 000/- and another cheque dated 22.12.2002 for Tk. 15,00,000/- respectively on Standard

Grindlays Bank and when the complainant placed the cheques for encashment, those

cheques were dishonored on 17.12.2002 with the information slip stating that payment

was stopped by the drawer. Thereafter, the cheques were again sent for encashment

and on 18.01.2003 the cheques were again dishonorer and the complainant on 22.01.2003 issued a legal notice to the accused petitioner who did not repay the loan.

3. The trial court on conclusion of trial convicted the accused petitioners under section

138 of the Negotiable Instrument Act and sentersed him to suffer simple imprisonment

for six months and to pay a fine of Tk. 1,50,00,000/-. Being aggrieved the petitioner preferred appeal before the Metropolitan Sessions Judge, Dhaka but the appeal was dismissed. The petitioner then moved the High Court Division in revisional jurisdiction under section 439 of the Code of Criminal Procedure and obtained the present Rule which after hearing was discharged.

4. We have heard Mr. Abdul Baset Majumder, the learned Counsel for the petitioner

and perused the judgment of the High Court Division and other connected papers.

5. The High Court Division held that the Provision of Section 138 of the Negotiable

Instrument Act have been complied with before the filing of the petition of complaint.

The cheques were presented to the Bank within a period of six months from the date on which it is drawn and within the period of its validity and the complainant made a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding the return of the cheques unpaid.

6. The High Court Division further held that “Section 138 of the Negotiable Instrument

Act provides penalties in case of dishonour of cheques for insufficiency of the funds etc.

of the account. The purpose of section 138 of the Negotiable Instrument Act is to enalize

the drawer in case of dishonour of cheques not only for insufficiency of funds in the account but also for other mode of stopping the payment. “Stop payment” instructions cannot obviate the liability of the drawer under section 138 of the Negotiable Instrument Act. Failure to pay after receiving notice shows dishonest intention and therefore, the offence under the section is made out. Refusal to pay because of stop payment notice is a dishonour within the meaning of the provisions dealing with dishonour of cheques and this is so irrespective of the remarks of the Bank on the dishonour slip. The stop payment

instructions amounts to dishonour of the cheque on account of fault on the part of the

person who had issued the cheque. On issuance of the notice by the payee or the holder in due course after dishonour to the drawer demanding payment within 15 days from the date of the receipt of such a notice, if he does not pay the same, the statutory presumption

of dishonest intention in instructing the Bank to stop payment is evident from the conduct of the accused and he is liable for the offence under section 138.”

7. Thus it appears that the High Court Division upon detailed and elaborate discussions

after assigning cogent reasons came to the conclusion that the appellate Court below upon correct assessment of the materials on record dismissed the appeal. There is no cogent reason to interfere with the same.

8. The petition is dismissed.

Source : V ADC (2008),538