Supreme Court Judgments, Summarised

by Barrister Tahmidur Rahman | Nov 3, 2026

High Court Division · Criminal Revisional Jurisdiction

Md. Mofiz Ali v The State and another

Criminal Revision 1754/2023 · Decided 13 September 2026

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1judge on the bench

8pages

21paragraphs

2laws considered

Summary

Islami Bank Bangladesh Limited, Biswanath Branch, Sylhet complained that the petitioner, who had taken a loan from it, issued a cheque for Taka 1,33,000 that was dishonoured for insufficiency of funds and was not paid after statutory notice. The Joint Sessions Judge, 2nd Court, Sylhet convicted him under section 138 of the Negotiable Instruments Act, 1881 and sentenced him to three months' simple imprisonment and a fine of Taka 1,33,000, and the Additional Sessions Judge, 3rd Court, Sylhet dismissed his appeal. The bank stated that he had paid the entire cheque liability directly to it and did not object to the sentence of imprisonment being set aside. The High Court Division found that the complainant had complied with section 138 and that the conviction was free from illegality. Relying on Aman Ullah v State, 73 DLR (2021) 541, it affirmed the conviction but set aside the three months' simple imprisonment and released the petitioner from his bail bond.

Issues

Q1
Whether the conviction under section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque issued to a bank was lawful.
Q2
Whether the substantive sentence of imprisonment should be maintained where the convict had paid the entire cheque amount to the complainant bank during the proceedings.

Key points

The complainant complied with the procedure in section 138 of the Negotiable Instruments Act, 1881, filed the case within one month of the cause of action under clause (c) of the proviso, and proved consideration and that it was the holder in due course, so the conviction was lawful.
In a prosecution under section 138, the primary object of the legislation is to ensure payment of the cheque amount to the payee rather than to incarcerate the drawer.
Where the entire cheque amount has been paid, insistence on a custodial sentence may not serve any meaningful penal objective, following Aman Ullah v State, 73 DLR (2021) 541.
The conviction was affirmed and the sentence modified by setting aside the three months' simple imprisonment, with the petitioner released from his bail bond.

In a prosecution under Section 138 of the Negotiable Instruments Act, the primary object of the legislation is to ensure payment of the cheque amount to the payee rather than incarcerate the drawer.

From the judgment, Justice Md. Bashir Ullah

Law considered

Negotiable Instruments Act, 1881, section 138Code of Criminal Procedure, 1898, sections 435 and 439

The judgment

In the court’s own words.

Criminal Revision 1754/2023, as published by the Supreme Court of Bangladesh. 8 pages, with paragraph numbers for citing.

Find in this judgmentPDF

1IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

2(CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Bashir Ullah

Criminal Revision No. 1754 of 2023

In the matter of:

An application under Section 439 read with

Section 435 of the Code of Criminal

Procedure

And

In the matter of:

Md. Mofiz Ali

…Convict-Petitioner.

-Versus-

The State and another

… Opposite Parties.

None appears

… For the petitioner.

Mr. Md. Shofiul Aziz, Advocate

…For the Opposite Party No. 2.

Mr. Md. Mizanur Rahman, D.A.G with

Mr. Md. Sirajul Karim (Rabi), A.A.G

… For the State

Heard on: 08.09.2026 and 09.09.2026

Judgment on: 13.09.2026

3This Rule was issued at the instance of the petitioner calling upon the opposite parties to show cause as to why the judgment and order dated 22.03.2020 passed by the learned Additional Sessions Judge, 3rd Court, Sylhet in Criminal

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Appeal No. 33 of 2020, dismissing the appeal and thereby affirming the judgment and order of conviction and sentence dated 28.07.2019 passed by the learned Joint Sessions Judge, 2nd Court, Sylhet in Sessions Case No. 1051 of 2017, arising out of C.R Case No. 100 of 2017, convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 03(three) months and to pay a fine of Tk. 1,33,000/- (one lac thirty-three thousand) should not be set aside and/or such other or further order or orders be passed as to this Court may seem fit and proper.

4The facts, relevant for disposal of the Rule, in brief, are that opposite party No. 2, Islami Bank Bangladesh Limited, Biswanath Branch, Sylhet as complainant instituted C.R. Case No. 100 of 2017 before the Court of the learned Senior Judicial Magistrate, 3rd Court, Sylhet against the present petitioner, alleging inter alia that the accused obtained loan from the complainant-bank amounting to Taka 1,33,000/- (one lac thirty-three thousand). In discharge of the said liability, the accused issued cheque No. IBA 4165991 dated

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10.01.2017 in favour of the complainant for Taka 1,33,000/- (one lac thirty-three thousand). Upon presentation, the said cheque was dishonoured by the concerned bank on 19.01.2017 with the endorsement ‘insufficiency of funds’. Thereafter, a statutory legal notice was served on 29.01.2017 upon the petitioner demanding payment of the cheque amount, and the same was received by the accused. Despite receipt of the notice, the accused failed to comply with the same. Consequently, the complainant instituted the case.

5Upon receipt of the complaint petition, the learned Magistrate took cognizance of the offence and thereafter transmitted the case record to the learned Sessions Judge, Sylhet. Subsequently, the same was transferred to the learned Joint Sessions Judge, 2nd Court, Sylhet and the case was registered as Sessions Case No. 1051 of 2017. The charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 on 29.03.2018, to which the accused pleaded not guilty and claimed to be tried, when the charge was read out and explained to him. During trial, the prosecution examined 01(one) witness while the defence

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examined none. The accused was examined under Section 342 of the Code of Criminal Procedure and reiterated innocence.

6Upon conclusion of the trial and after hearing the parties, the learned Joint Sessions Judge, 2nd Court, Sylhet convicted the petitioner under Section 138 of the Negotiable Instruments Act of 1881 and sentenced him to suffer simple imprisonment for a period of 03(three) months and to pay a fine of Taka 1,33,000/- (one lac thirty-three thousand) by judgment and order dated 28.07.2019.

7Challenging the conviction and sentence, the petitioner filed Criminal Appeal No. 33 of 2020 before the learned Sessions Judge, Sylhet. On transfer and upon hearing the parties, the learned Additional Sessions Judge, 3rd Court, Sylhet dismissed the same by judgment and order dated 22.03.2022, affirming the judgment and order of conviction and sentence.

8Being aggrieved by and dissatisfied with the judgment and order dated 22.03.2022, the petitioner preferred the

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instant Criminal Revision before this Court and obtained the Rule.

9None appears for the petitioner to support the Rule, although the matter has been appearing in the daily cause list for several days with the name of the learned Advocate.

10Mr. Md. Shofiul Aziz, the learned Advocate appearing on behalf of the opposite party No. 2, submits that the convict-petitioner has already paid the entire cheque liability to the concerned bank directly and in proof thereof the bank has issued a certificate dated 09.09.2026, under Memo No. IBBL/Biswanath Br., Sylhet/2026.

11He further submits that the bank has no objection if the substantive sentence of imprisonment imposed upon the petitioner is set aside.

12I have considered the submissions of the learned Advocate for the opposite party No. 2, perused the impugned judgments and orders, and materials on record.

13The record shows that the complainant has duly complied with the procedures laid down in Section 138 of the

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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 consideration against which the cheque was drawn and that it is the holder of the cheque in due course. The Courts below rightly found the petitioner guilty of the charge. Hence, the impugned judgment and order of conviction do not suffer from any illegality, impropriety or infirmity.

14It is an admitted position that during the pendency of the proceedings the petitioner has paid the entire cheque liability directly to the bank-opposite party No. 2. The complainant-bank has acknowledged receipt of the entire outstanding amount and has categorically stated that no amount remains due from the petitioner in respect of the cheque in question. The bank has also expressed no objection to the setting aside of the substantive sentence of imprisonment imposed upon the petitioner.

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15However, concerning the sentence, reliance may be placed upon the decision passed in Aman Ullah Vs. State, reported in 73 DLR (2021) 541, wherein this Court observed that in a prosecution under Section 138 of the Negotiable Instruments Act, the sentence of imprisonment would be a harsh sentence having no penal objective to be achieved. I respectfully concur with the principle enunciated therein. In a prosecution under Section 138 of the Negotiable Instruments Act, the primary object of the legislation is to ensure payment of the cheque amount to the payee rather than incarcerate the drawer. Consequently, where the entire cheque amount has already been paid, insistence upon a custodial sentence may not sub serve any meaningful penal objective.

16Considering the facts and circumstances of the case, the nature of the offence, this Court is of the view that the ends of justice would be best served if the sentence is modified by setting aside the substantive sentence of imprisonment.

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17In view of the foregoing discussions and the principle enunciated in the above-mentioned decision, the order of the Court is as follows:

18The conviction of the petitioner under Section 138 of the Negotiable Instruments Act, 1881 is hereby affirmed. However, the sentence is modified. The sentence of 03(three) months simple imprisonment is set aside.

19In the result, the Rule is disposed of with modification of the sentence. The convict-petitioner is released from his bail bond.

20Let a copy of the judgment along with the Lower Court Records (LCR) be communicated to the Court concerned forthwith.

(Md. Bashir Ullah, J)

21Md. Sabuj Akan Assistant Bench Officer