High Court Division · Criminal Appellate Jurisdiction
Md. Iqbal Hossein v The State and another
Criminal Appeal 3400/2018 · Decided 3 September 2026
The appellant took a loan of Tk. 1,90,000 from BRAC and issued a cheque for Tk. 2,00,000, which was dishonoured for insufficient funds. After a statutory notice went unpaid, the complainant prosecuted him and the Sessions Judge, Joypurhat convicted him in his absence under section 138 of the Negotiable Instruments Act, 1881, sentencing him to one year's rigorous imprisonment and a fine of Tk. 2,00,000. He appealed after depositing Tk. 1,00,000. The complainant applied for disposal of the appeal with modification of sentence, stating that the balance had been paid directly under a compromise deed and that it did not oppose the appeal. The High Court Division found that the complainant had complied with the procedure in section 138, filed within time and proved consideration, and upheld the conviction. Relying on Aman Ullah v State, 73 DLR (2021) 541, it set aside the sentence of imprisonment, maintained the fine equal to the cheque amount and directed that the deposit be paid to the complainant.
- Q1
Whether the conviction under section 138 of the Negotiable Instruments Act, 1881 was sustainable.
- Q2
Whether the substantive sentence of imprisonment should be set aside where the appellant had paid the entire cheque amount to the complainant.
- Where the complainant proves compliance with the procedure in section 138, filing within one month of the cause of action under clause (c) of the proviso, consideration and holding in due course, the conviction does not suffer from illegality.
- In cases under section 138 of the Negotiable Instruments Act, a substantive sentence of imprisonment may be harsh with no penal objective to be achieved, following Aman Ullah v State, 73 DLR (2021) 541.
- Where the convict has adjusted the entire liability with the complainant, the sentence of imprisonment may be set aside while the fine equal to the cheque amount is maintained.
- The amount deposited before filing the appeal is to be disbursed to the complainant.
this Court observed that in cases instituted under section 138 of the Negotiable Instruments Act, imposition of a substantive imprisonment would be a harsh having no penal objective to be achieved.
In the court’s own words.
Criminal Appeal 3400/2018, as published by the Supreme Court of Bangladesh. 8 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
2(CRIMINAL APPELLATE JURISDICTION)
Present:
Mr. Justice Md. Bashir Ullah
Criminal Appeal No. 3400 of 2018
In the matter of:
An Appeal under section 410 of the Code of
Criminal Procedure
-And-
In the matter of:
Md. Iqbal Hossein
… Convict-Appellant
-Versus-
The State and another
…Complainant-Respondents
No one appears
… For the Convict-Appellant
Mr. Md. Zishan Mahmud, Advocate with
Ms. Tasnuva Quiser, Advocate
… For the Complainant-Respondent No. 2
Mr. Md. Mizanur Rahman, D.A.G and
Mr. Md. Sirajul Karim (Rabi), A.A.G
Heard on: 24.08.2026 and 25.08.2026
Judgment on: 03.09.2026
3This appeal, preferred under section 410 of the Code of Criminal Procedure, 1898 is directed against the judgment and order dated 04.03.2018 passed by the learned Sessions
Judge, Joypurhat in Sessions Case No. 33 of 2017 arising out of C.R Case No. 192(C) of 2016(Khet:), convicting the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer rigorous imprisonment for a period of 01(one) year and to pay a fine of Taka. 2,00,,000/- (two lac).
4The prosecution case, in short, is that the accusedappellant obtained a loan of Taka 1,90,000/- from the complainant-BRAC,BDP, Fuldighi Branch, Khetlal, Joypurhat. The amount stood Taka 2,00,000/- after adding interest. In discharge of the said liability, the accusedappellant issued cheque No. OIB 4208839 dated 27.06.2016 for Taka 2,00,000/=, drawn on Agrani Bank Limited, Chamrul Bogra Branch. The complainant presented the said cheque to the concerned bank on 27.06.2016 but the same was dishonoured on 20.07.2016 with the endorsement “insufficiency of funds”. Thereafter, the complainant served a statutory legal notice on 27.07.2016 and it was received on 02.08.2016, however, the appellant failed to make payment within the stipulated period.
5Consequently, the complainant filed C.R. Case No. 192(C) of 2016(Khet:) before the Judicial Magistrate, Cognizance Court, Ga Anchal, Jaypurhat. The learned Magistrate took cognizance of the offence and subsequently transmitted the case to the Court of the learned Sessions Judge, Joypurhat and was registered as Sessions Case No. 33 of 2017. Charge was framed under Section 138 of the Negotiable Instruments Act, 1881 against the accusedappellant on 21.06.2017. The accused pleaded not guilty and claimed to be tried when the charge was read over and explained to him.
6In course of trial, the prosecution examined 01(one) witness. The accused was not examined under Section 342 of the Code of Criminal Procedure as he remained absconding.
7Upon conclusion of the trial and hearing the parties, the learned Sessions Judge, Joypurhat convicted the accused under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer rigorous imprisonment for a period of 01(one) year and to pay a fine of Taka. 2,00,,000/- (two lac) by judgment and order dated 04.03.2018.
8Being aggrieved by and dissatisfied with judgment and order dated 04.03.2018, the appellant preferred the instant Criminal Appeal before this Court having deposited Taka 1,00,000/-, whereupon the Court enlarged the appellant on bail for a period of 01(one) year on 09.04.2018.
9No one appears on behalf of the appellant although the appeal has been appearing in the daily cause list for several days with the name of the learned Advocate for the appellant.
10Per contra, Ms. Tasnuva Quiser, the learned Advocate appearing for the respondent No. 2 by filing an application for disposal of appeal on modification of sentence submits that the appellant deposited Taka 1,00,000/- (one lac) only before filing the appeal. Subsequently, during pendency of the appeal, the appellant paid Taka 1,00,000/- (one lac) directly to the complainant-BRAC Microfinance. In this regard, the parties signed a deed of compromise. She submits that since the appellant adjusted entire cheque amount, so she has no objection if the substantive sentence of imprisonment is set aside. She submits that she has received instruction from his client not to oppose the appeal.
11I have heard the learned Advocate for respondent No.2 and perused the materials on record.
12It appears from the petition of complaint, the deposition of PW1 (complainant) and the documentary evidence, it transpires that the accused-appellant obtained a loan of Taka 1,90,000/- from the complainant-BRAC BDP, Fuldighi Branch, Khetlal, Joypurhat. In discharge of the said liability, the accused-appellant issued cheque No. OIB 4208839 dated 27.06.2016 for Taka 2,00,000/=, drawn on Agrani Bank Limited, Chamrul Bogra Branch. The complainant presented the said cheque to the concerned bank on 27.06.2016 but the same was dishonoured with the endorsement “insufficiency of funds”. Thereafter, the complainant served a statutory legal notice on 02.08.2016, however, the appellant failed to make payment within the stipulated period. Consequently, the complainant filed C.R. Case No. 192(C) of 2016(Khet:). P.W.1 duly proved the prosecution case.
13The record shows that the complainant has successfully proved compliance of the procedure laid down in Section 138 of the Act, 1881 in filing the case. The case was filed within one month of the date on which the cause of action had arisen
under clause (c) of the proviso to Section 138. The complainant also proved the consideration against which the cheque was drawn and that it is the holder of the cheque in due course. The trial Court upon proper assessment of evidence righty found the accused guilty of the charge. Hence, the impugned judgment and order of conviction does not suffer from any illegality or infirmity.
14However, as regards to the sentence, reference may be made to the decision passed in Aman Ullah Vs. State, reported in 73 DLR (2021) 541, wherein this Court observed that in cases instituted under section 138 of the Negotiable Instruments Act, imposition of a substantive imprisonment would be a harsh having no penal objective to be achieved.
15The record shows that the accused deposited Taka 1,00,000/- prior to filing the appeal and during pendency of the appeal the appellant paid rest amount of the cheque to the respondent directly. Thus, he adjusted the entire liability to the complainant. In this regard, the respondent No.2 BRAC Microfinance signed a compromise deed dated 15.07.2026 (Annexure-I). Learned Advocate for the respondent no. 2 also admitted that the respondent no.2 BRAC Microfinance has
received the entire amount of liabilities and that no outstanding dues remained.
16Considering the financial hardship of the petitioner and the facts and circumstances of the case this Court is of the view that the ends of justice would be best served if the substantive sentence of imprisonment is modified and set aside while preserving the financial penalty.
17In view of the foregoing discussions, together with the decision and the ratio laid down in the above-mentioned reported case, the appeal is disposed of with the following order:
18The conviction of the appellant under Section 138 of the Act, 1881 is upheld, however, the sentence of 01(one) year simple imprisonment is set aside. The sentence of fine of Taka 2,00,000/- which is equivalent to the cheque amount is maintained. It appears that the convict-appellant has already deposited Tk. 1,00,000/- before the trial Court prior to filing the appeal and subsequently he deposited the rest amount to the complainant-BRAC Microfinance directly. The Court concerned is directed to disburse the deposited amount, Taka
1,00,000/- to the complainant-respondent No. 2 forthwith upon proper identification.
19In the result, the Appeal is disposed of with modification of sentence of imprisonment and with directions as made above. The convict-appellant is released from her bail bond.
20Let the judgment along with lower Court’s records (LCR) be communicated to the Court concerned forthwith.
(Md. Bashir Ullah, J)
21Md. Ariful Islam Khan Bench Officer
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