Appellate Division
Pubali Bank Limited v Chowdhury Shamim Hamid and another
Criminal Petition 1059/2024 · Decided 11 June 2024
Pubali Bank Limited brought three cases under section 138 of the Negotiable Instruments Act, 1881 against a borrower whose cheques of Tk. 60,48,231 each were dishonoured. After trials in absentia he was convicted in each case and sentenced to one year's simple imprisonment and a fine. Following his arrest, the trial Court rejected his applications for bail under section 426(2A) of the Code of Criminal Procedure. In revision, the High Court Division granted him bail for one month so that he could deposit 50% of the cheque amounts and appeal. The bank sought leave to appeal. The Appellate Division held that section 138A, through its non-obstante clause, overrides the general provisions of the Code as to appeals, so that no appeal lies without the 50% deposit, and the High Court Division cannot dispense with that pre-condition in revision. It set aside the High Court Division's orders, observing that the convict could still appeal on making the deposit, after which the court below could grant bail.
- Q1
Whether a person convicted under section 138(1) of the Negotiable Instruments Act, 1881 is entitled to bail under section 426(2A) of the Code of Criminal Procedure to prefer an appeal without first depositing 50% of the cheque amount as required by section 138A.
- Q2
Whether the High Court Division, in revision, can dispense with the pre-deposit condition in section 138A.
- Section 138A of the Negotiable Instruments Act has a non-obstante clause which overrides the general provisions of the Code of Criminal Procedure as regards preferring an appeal against a sentence under section 138(1).
- The deposit of 50% of the cheque amount and the preferring of an appeal are dependent on each other, so no appeal lies without the deposit, and the condition cannot be curtailed by applying general law.
- Conditions stipulated in a special law such as the Negotiable Instruments Act must be strictly complied with, and the provision is to be interpreted in light of its object of streamlining recovery of cheque money.
- In exercising revisional powers under sections 435 and 439 of the Code, the High Court Division cannot dispense with the pre-condition of depositing 50% of the cheque amount.
- Section 426(2A) of the Code is not contradictory to section 138A, but applies only subject to fulfilment of the deposit condition in section 138A.
Thus, where there is no deposit of 50% of the cheque money by the convict under Section 138(1) of the Negotiable Instruments Act no appeal will lie. The pre-condition regarding deposit of 50% of the cheque money cannot be curtailed by application of general law.
In the court’s own words.
Criminal Petition 1059/2024, as published by the Supreme Court of Bangladesh. 12 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
2CRIMINAL PETITION FOR LEAVE TO APPEAL
NOS.1059-1061 OF 2024
3(From the orders dated 30.05.2024 passed by the High Court Division in Criminal Revision Nos.3178,3180 & 3179 of 2024 respectively) Pubali Bank Limited ………………….Petitioner
(In all the cases)
-Versus-
4Chowdhury Shamim Hamid and another ……………..Respondents
(In all the cases)
5For the petitioner : Mr. A. M. Amin Uddin, senior Advocate with (In all the cases) Mr. M. Ashraf Ali, Advocate instructed by Ms.
Madhumalati Chowdhury Barua, Advocate-on-
Record.
6For the respondent : Mr. M. Sayed Ahmed, senior Advocate with No. 1 Zulhas Uddin Ahmed, Advocate instructed by (In all the cases) Mr. Md. Quamrul Islam, Advocate-on-Record. For the respondent : Not represented. No.2 (In all the cases) Date of hearing and : The 11th day of June, 2024 judgment
JUDGMENT
7Obaidul Hassan,C.J. All these Criminal Petitions for Leave to Appeal are being disposed of by this common judgment as all the cases are between the same parties and involve common questions of law.
8All these Criminal Petitions for Leave to Appeal are directed at the instance of the petitioner-respondent No.1 in each case against the orders dated 30.05.2024 passed by the High Court Division in Criminal Revision Nos.3178, 3180 and 3179 of 2024 respectively enlarging him on bail in each case for a period of one month to enable him to deposit 50% of the total amount of cheque in preferring appeal against the sentence of the trial Court.
9The facts necessary for disposal of these criminal petitions are that the petitioner, Pubali Bank Limited, Dorgagate Branch, Sylhet in each case filed cases being Kotwali C.R. Case Nos.844 of 2021, 241 of 2022 and 963 of 2021 before the Additional Chief Metropolitan Magistrate Court, Sylhet against the convict-respondent No.1 under Section 138 of the Negotiable Instruments Act, 1881 (for short Negotiable Instruments Act)contending, inter alia, that the respondent No.1 took total loan amounting Tk.18,00,00,000/-(eighteen crore only) from the complainant bank. As a part of payment of the said loan the respondent No.1 issued three separate cheques in each case amounting Tk.60,48,231/ (sixty lac forty eight thousand two hundred thirty one only) each on 19.07.2021, 20.07.2021 and 20.03.2021 respectively. Those cheques were presented before the bank on 19.07.2021, 12.12.2021 and 31.08.2021 respectively for encashment, but the same was dishonoured on the said dates in each case due to insufficient of fund. Thereafter, the complainant sent legal notice in each case to the respondent No.1 to make payment of the amount of cheque failing of which the complainant filed three separate cases under Section 138 of the Negotiable Instruments Act, 1881 against the respondent No.1. Subsequently those cases were transferred to the Metropolitan Sessions Judge, Sylhet and renumbered as Sessions Case Nos.573, 572 and 574 of 2023 respectively which were eventually sent to the Joint Metropolitan Sessions Judge, 1st Court, Sylhet for holding trial. The trial in each case was held in absentia of
the respondent No.1. Upon conclusion of evidence the trial Court vide judgments and orders dated 03.04.2024 sentenced and convicted the respondent No.1 in each case to suffer 1(one) year simple imprisonment and also to pay fine amounting Tk.60,48,231/ (sixty lac forty eight thousand two hundred thirty one only). Subsequently on 25.05.2024 the respondent No.1 was arrested and he filed three separate applications for bail in each case on 26.05.2024 under Section 426(2A) of the Code of Criminal Procedure, 1898 (for short Cr.PC) on condition of preferring appeal before the appellate Court. Upon hearing the bail applications the trial Court vide orders dated 26.05.2024 rejected the bail of the respondent No.1. Challenging the said orders the respondent No.1 filed Criminal Revisions being No.3178, 3180 and 3179 of 2024 before the High Court Division. Upon hearing the said cases the High Court Division vide orders dated 30.05.2024 enlarged the respondent No.1 on bail in each case for a period of 1(one) month, so that he can be able to deposit 50% of the cheque amount for preferring appeal against the judgments and orders of conviction and sentence passed by the trial Court.
10Being disgruntled with the impugned orders dated 30.05.2024 passed by the High Court Division the complainant-petitioner in each case filed these Criminal Petitions for Leave to Appeal.
11Mr. A. M. Amin Uddin, learned senior Advocate appearing for the petitioners in each case assailing the orders dated 30.05.2024 passed by the High Court Division contends that Section 138A of the
Negotiable Instruments Act stipulates for deposit of 50% of the total cheque amount before filing appeal against the order of sentence which is mandatory provision. The High Court Division has no jurisdiction to enlarge the respondent No.1 on bail under Section 426(2A) of the Code of Criminal Procedure on condition of filing appeal without deposit of the 50% of the total cheque amount. But the High Court Division most illegally passed the impugned orders and as such those are liable to be set aside.
12On the other hand, Mr. M. Sayed Ahmed, learned senior Counsel appearing for the respondent No.1 contends that the High Court Division had given a breathing space by enlarging the respondent No.1 to enable him to deposit 50% of the total cheque money in filing appeal against the order of sentence awarded by the trial Court. The learned senior Counsel contends next that the Negotiable Instruments Act is a substantive law whereas the Code of Criminal Procedure is procedural law which will be applicable to decide the matter under Negotiable Instruments Act and as such the High Court Division did not commit any illegality in passing the impugned orders. The learned senior Counsel lastly prays for dismissal of the Criminal Petitions.
13We have considered the submissions of the learned Counsels for both sides, perused the impugned orders passed by the High Court Division as well as the materials on record.
14It surfaces from the record that in the cases in hand the respondent No.1 was arrested on 25.05.2024 and sought bail from the trial Court under Section 426(2A) of the Code of Criminal Procedure on condition of preferring appeal. However, he did not deposit 50%
of the total cheque money. The trial Court rejected the bail applications of the respondent No.1 on 26.05.2024 in each case against which the respondent No.1 again filed three Criminal Revisions under Section 439 read with Section 435 of the Code of Criminal Procedure before the High Court Division. The High Court Division vide impugned orders allowed the respondent No.1 to go on bail under Section 426(2A) of the Code Criminal Procedure for one month so that he can deposit 50% of cheque money for preferring appeal in each case. In the said backdrop, the moot issue in all the cases is whether a convict under Section 138(1) of the Negotiable Instruments Act is entitled to get bail under Section 426(2A) of the Code of Criminal Procedure without complying with the stipulated condition of depositing 50% of the total cheque money before preferring appeal against the order of sentence as prescribed under Section 138A of the Negotiable Instruments Act.
(underlines supplied by us)
15Before delving into the said issue, it is apposite to extract Sections 138A, 138(1) of the Negotiable Instruments Act vis-à-vis the provisions of Section 426 of the Code of Criminal Procedure Section 138A of the Negotiable Instruments Act lays down the following-
16“138A. Notwithstanding anything contained in the Code
17of Criminal Procedure, 1898, no appeal against any order
18of sentence under sub-section (1) of section 138 shall lie,
19unless an amount of not less than fifty per cent of the
20amount of the dishonoured cheque is deposited before
filing the appeal in the court which awarded the
21sentence.”
(underlines supplied by us)
22Section 138(1) of the Negotiable Instruments Act provides that-
23“138.(1)Where any cheque drawn by a person on an
24account maintained by him with a banker for payment of
25any amount of money to another person from out of that
26account is returned by the bank unpaid, either because of
27the amount of money standing to the credit of that
28account is insufficient to honour the cheque or that it
29exceeds the amount arranged to be paid from that
30account by an agreement made with that bank, such
31person shall be deemed to have committed an offence and
32shall, without prejudice to any other provision of this Act,
33be punished with imprisonment for a term which may
34extend to one year, or with fine which may extend
35to thrice the amount of the cheque, or with both:
36…………………………………………………………………………………..” Section 426 of the Code of Criminal Procedure is as follows-
37”426.(1) Pending any appeal by a convicted person, the
38Appellate Court may, for reasons to be recorded by it in
39writing, order that the execution of the sentence or order
40appealed against be suspended and, also, if he is in
41confinement, that he be released on bail or on his own
42bond.
43(2) The power conferred by this section on an Appellate
44Court may be exercised also by the High Court Division
45in the case of any appeal by a convicted person to a Court
46subordinate thereto.
47(2A) When any person is sentenced to imprisonment for a
48term not exceeding one year by a Court, and an appeal
49lies from that sentence, the Court may, if the convicted
50person satisfies the Court that he intends to present an
51appeal, order that he be released on bail for a period
52sufficient in the opinion of the Court to enable him to
53present the appeal and obtain the orders of the Appellate
54Court under sub-section(1) and the sentence of
55imprisonment shall, so long as he is so released on bail, be
56deemed to be suspended.
57(2B) Where High Court Division is satisfied that a
58convicted person has been granted special leave to appeal
59to the Appellate Division of the Supreme Court against
60any sentence which it has imposed or maintained, it may
61if it so thinks fit order that pending the appeal the
62sentence or order appealed against be suspended, and
63also, if the said person is in confinement, that he be
64released on bail.
65(3) When the appellant is ultimately sentenced to
66imprisonment, or transportation, the time during which
67he is so released shall be excluded in computing the term
68for which he is so sentenced.”
(underlines supplied by us)
69Section 138A of the Negotiable Instruments Act stipulates that an amount of not less than fifty per cent of the amount of the dishonoured cheque shall be deposited by the convict in the Court which awarded the sentence under Section 138(1) of the Negotiable Instruments Act if he desires to prefer appeal against the said order of conviction. Again, according to Section 426(2A) of the Code of
Criminal Procedure where a person is sentenced to imprisonment not exceeding one year against which an appeal lies and the convict intends to prefer an appeal against the order of sentence the Court has the discretion to release the convict on bail for a period so as to enable him to present the appeal. However, so long as the convict is released on bail the sentence of imprisonment shall be deemed to be suspended.
70But the crux of the contention is that whether the convict under Section 138(1) of the Negotiable Instruments Act can prefer appeal and get bail for some time if he does not comply with the mandatory provisions of Section 138A of the Negotiable Instruments Act as regards deposit of 50% of the total amount of cheque. Suffice it to say that the Negotiable Instruments Act is a special law and the legislature’s intent behind the enactment of Section 138 of the Negotiable Instruments Act is to prevent the drawee from being defrauded of a negotiable instrument by a drawer of the same and ultimate object of the law is to instill trust in the mind of the people and maintain credibility in transacting business on negotiable instruments. When once certain conditions are stipulated under the special law the conditions have to be strictly complied with.
71Section 138A of the Negotiable Instruments Act has a nonobstante clause which has an overriding effect over general provisions contained in the Code of Criminal Procedure as regards preferring appeal against the order of sentence. The non-obstante clause is a Latin
phrase meaning ‘notwithstanding’ which is used to indicate that a particular provision should take precedence over any conflicting provisions. It precludes the use of contrary interpretations from other statutes or laws. In the cases in hand, Section 138A of the Negotiable Instruments Act imposes a restriction on a convict as regards depositing 50% of the total cheque money before preferring appeal against the sentence. The condition of depositing the 50% of the total cheque money and preferring appeal both are dependent on each other. Thus, where there is no deposit of 50% of the cheque money by the convict under Section 138(1) of the Negotiable Instruments Act no appeal will lie. The pre-condition regarding deposit of 50% of the cheque money cannot be curtailed by application of general law.
72It is settled that interpretation of a statute should be based on the object which the legislature intended to achieve. It has been observed by Indian Supreme Court in the case of M/S New India Sugar Mills Ltd. Vs. Commissioner of Sales Tax, AIR 1963 SC 1207 that-
“It is a recognized Rule of interpretation of statutes that
expressions used therein should ordinarily be understood
in a sense in which they best harmonize with the object of
the statute, and which effectuate the object of the
Legislature. If an expression is susceptible of a narrow or
technical meaning as well as a popular meaning, the
Court would be justified in assuming that the Legislature
used the expression in the sense which would carry out
73its object and reject which renders the exercise of its
74power invalid.”
(underlines supplied by us)
75It is manifest from the overall reading of the Negotiable Instruments Act that the legislature inserted the provision of deposit of 50% of the total cheque money before preferring an appeal in the Negotiable Instruments Act only to streamline the process of recovery of cheque money so that no person can deceive another as regards transactions over cheque. Therefore, the pre-condition of depositing 50% of the total cheque money while preferring appeal as enshrined in Section 138A of the Negotiable Instruments Act cannot be given a go-bye which according to the principle of interpretation of statute must be adhered to. The High Court Division is not given such latitude to allow a convict under Section 138(1) of the Negotiable Instruments Act to go on bail for some period on condition of preferring appeal against the sentence without depositing 50% of the total cheque money before preferring appeal. But the High Court Division by the impugned orders misconstrued the provisions of Section 138A of the Negotiable Instruments Act and as such those call for interference by this Division.
76Of course, it is to be clarified that Section 435 of the Code of Criminal Procedure enables the High Court Division to examine the correctness, legality or propriety of any order passed by Court inferior to it. In the cases in hand, the High Court Division has the
revisional jurisdiction to examine the legality of the order of rejection of bail passed by the trial Court under Section 435 of the Code of Criminal Procedure. Moreover, the High Court Division in dealing with the revisional application has such power as enumerated in Section 439 of the Code of Criminal Procedure. However, in exercising such revisional power as enumerated under Section 439 of the Code of Criminal Procedure the High Court Division cannot dispense with the pre-condition of depositing 50% of the total cheque money before preferring appeal by the respondent No.1. It is to be noted that Section 426(2A) of the Code of Criminal Procedure is not contradictory with the provisions of Section 138A of the Negotiable Instruments Act. Rather the provisions of Section 426(A) of the Code of Criminal Procedure will be applicable subject to the fulfillment of condition stipulated under Section 138A of the Negotiable Instruments Act.
77In the premises made above as well as for the foregoing reasons, the impugned orders dated 30.05.2024 passed by the High Court Division in Criminal Revision Case Nos.3178, 3180 and 3179 of 2024 are set aside.
78However, upon deposit of 50% of the total cheque amount by the respondent No.1 in each case this judgment shall not preclude him from preferring appeal against the respective judgment pronounced by the trial Court. In case of deposit of 50% of the total
cheque amount in each case the Court below will be at liberty to enlarge the respondent No.1 on bail in connection with each case.
79With the above observations, these Criminal Petitions for Leave to Appeal are disposed of.
C.J.
J.
J.
80The 11th day of June, 2024 RRO/Total words-2,831
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