High Court Division · Criminal Appellate Jurisdiction
Nizam Uddin Mahmud v Nogina Hasin and another
Criminal Appeal (H) 6867/2018 · Appeal allowed; acquittal reversed, accused convicted · Decided 13 September 2026
The complainant appealed against the acquittal of the accused by the Metropolitan Joint Sessions Judge, First Court, Dhaka on 14.03.2018 on a charge under section 138 of the Negotiable Instruments Act, 1881. After a settlement of dues from share transactions, the accused had issued five cheques, and one for Tk. 25,00,000 was dishonoured for insufficient funds. The trial court acquitted, finding the notice not duly served and the dishonour slip, which had gone missing from the record, not exhibited. During the appeal, additional evidence was allowed, and an attested dishonour slip and the original bank statement were exhibited without objection by the accused. The High Court Division held that the slip had been exhibited earlier, the bank statement proved dishonour, notice sent to the admitted address was presumed served under section 27 of the General Clauses Act, 1897, and the presumption under section 118 was not rebutted. The acquittal was set aside and the accused sentenced to six months' simple imprisonment and a fine equal to the cheque amount.
- Whether non-production of the bank's dishonour slip is fatal to a prosecution under section 138 of the Negotiable Instruments Act, 1881.
- Whether the statutory notice was duly served when sent by registered post to the accused's admitted address.
- Whether the accused rebutted the statutory presumption by claiming that the cheque was given as security.
- Non-production of the dishonour slip is not by itself fatal to a prosecution under section 138 of the Negotiable Instruments Act, 1881 where presentation and dishonour are otherwise proved by the evidence on record.
- The later disappearance of a document from the record does not erase the fact that it was earlier produced and exhibited in court.
- A notice sent by registered post to the accused's admitted address is presumed to be good service under section 27 of the General Clauses Act, 1897 unless the accused rebuts the presumption by evidence.
- Facts admitted by the accused, including her admission in a parallel proceeding between the same parties that the cheque was dishonoured, need not be proved (Evidence Act, 1872, s. 58).
- Once execution of the cheque is admitted or proved, the burden shifts to the accused under section 118 of the Negotiable Instruments Act, and a mere oral assertion that the cheque was a security cheque is insufficient.
- An objection that the dishonour slip was not filed with the complaint, raised for the first time at the hearing of the appeal, is not acceptable.
However, non-production of the ‘dishonour slip’, by itself, cannot invariably be construed as fatal to the prosecution, particularly when the factum of presentation and dishonour of the cheque is otherwise borne out by the evidence on record and the surrounding circumstances of the case.
