High Court Division
Md. Kobir Uddin Biswas v The State and another
Criminal Revision 2571/2025 · Decided 24 August 2026
The petitioner was convicted by the Joint Sessions Judge, 1st Court, Jhenaidah under section 138 of the Negotiable Instruments Act, 1881 and sentenced to one year's simple imprisonment and a fine of Tk. 25,04,054. Instead of appealing after depositing at least 50% of the cheque amount under section 138A, he applied for bail under section 426(2A) of the Code of Criminal Procedure, stating that he intended to appeal. The trial court rejected bail because the deposit had not been made, and he obtained a Rule in revision. No one appeared to press the Rule. The complainant argued that the special law prevails over the general Code. The High Court Division held that section 138A, opening with a non-obstante clause, overrides the Code, following the Appellate Division in Pubali Bank Ltd. v Chowdhury Shamim Hamid. The deposit is a condition precedent to an appeal that the court cannot dispense with. The Rule was discharged, interim bail cancelled, and the petitioner directed to surrender within 30 days.
- Q1
Whether a person convicted under section 138 of the Negotiable Instruments Act, 1881 can be granted bail pending an intended appeal without first depositing at least 50% of the dishonoured cheque amount as required by section 138A.
- Section 138A of the Negotiable Instruments Act, 1881 is prefaced by a non-obstante clause and has overriding effect over the general provisions of the Code of Criminal Procedure.
- Deposit of at least 50% of the dishonoured cheque amount under section 138A is a condition precedent and sine qua non for preferring an appeal and cannot be bypassed.
- The deposit condition and the right of appeal are interdependent and inseparable.
- A court has no latitude to dispense with the deposit in order to let a convict present an appeal and be enlarged on bail, contrary to the binding Appellate Division precedent.
- The ad-interim bail was cancelled and the convict was directed to surrender before the trial court within 30 days to serve the remaining sentence.
Thus, the requirement of depositing at least 50% of the amount of the dishonoured cheque provided in section 138A of Act of 1881 is a condition precedent, a sine qua non, for preferring an appeal, and cannot be given a go-by or bypassed.
In the court’s own words.
Criminal Revision 2571/2025, as published by the Supreme Court of Bangladesh. 7 pages, with paragraph numbers for citing.
Present
Mr. Justice Yousuf Abdullah Suman
Criminal Revision No. 2571 of 2025.
Md. Kobir Uddin Biswas
… Convict-Petitioner
-Versus-
The State and another
… Opposite Parties
None appears.
…. For the Petitioner
Mr. Md. Farhad Hossain (Kazal), D.A.G
with
Mr. Md. Sherajul Alam, A.A.G. with
Mr. Md. Hasan Imam Talukder, A.A.G..
……for the State
Mr. Mr. Md. Taufiqul Islam, Advocate
…For the Complainant- Opposite party
No.02
Heard on: 23.08.2026
Judgment on: 24.08.2026.
Yousuf Abdullah Suman, J:
1On an application under section 439 read with section 435 of the Code of Criminal Procedure, this Rule was issued calling upon the opposite parties to show cause as to why
the order dated 24.02.2025 passed by the learned Joint Sessions Judge, 1st Court, Jhenaidah in Sessions Case No. 905 of 2019 arising out of C.R. Case No. 09 of 2018 convicting the petitioner under section 138 of the Negotiable Instrument Act, 1881 and sentencing him to suffer simple imprisonment for 01 (one) year and to pay a fine of Tk. 25,04,054/- (twenty five lac four thousand and fifty four) vide the judgment and order of conviction and sentence dated 21.04.2022 passed by the same court, rejecting the prayer for bail of the convict-petitioner, 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.
2The facts necessary for disposal of this case are that, being convicted and sentenced, as stated above, under section 138 of the
Negotiable Instruments Act, 1881, the convictpetitioner, instead of preferring an appeal by depositing at least 50% of the amount of the dishonored cheque pursuant to section 138A of the Act of 1881, filed an application for bail under section 426(2A) of the Code of Criminal Procedure expressing his intention that he would prefer an appeal against the impugned judgment and order of conviction and sentence. The said application for bail was, however, rejected by the court below on the ground that, the convict did not deposit the required 50% of the dishonored cheque’s amount as mandated by section 138A of the Negotiable Instruments Act, 1881. The petitioner therefore filed this revision against the impugned order rejecting his prayer for bail, and obtained the instant Rule.
3No one appears to press the Rule, though the matter appeared regularly in the cause list with the name of the learned counsel for the petitioner, thereby giving the petitioner ample opportunity to be heard in his defence.
4Mr. Md. Taufiqul Islam, the learned counsel for the opposite-party no.2, submits that though the provisions of section 138A of the Negotiable Instruments Act, 1881 and section 426(2A) appears to be contradictory on the face of them, the provisions of the Act of 1881, being a special law, shall prevail over the general law provided under the Code of Criminal Procedure. He relies on Pubali Bank Ltd. vs Chowdhury Shamim Hamid [2024] 17 LM (AD) 124, and on Criminal Revision No. 1481 of 2024 (HCD). The learned counsel further submits that, the bail was granted by this Division subject to the deposit of 50% of the
amount of the dishonored cheque to the concerned court within 90 (ninety) days, which the petitioner failed to comply with. He therefore prays for discharging the Rule.
5Heard the learned counsel appearing for the opposite party no.2, perused the materials on record, and the impugned order passed by the learned Joint Sessions Judge, 1st Court, Jhenaidah rejecting the prayer for bail of the convict-petitioner.
6It is settled and no longer res integra that, as section 138A of the Negotiable instruments Act is prefaced by a non-obstante clause, i.e., Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the provision of this section has overriding effect over general provisions contained in section 246(2A) of the Code of
Criminal Procedure: Pubali Bank Ltd. vs Chowdhury Shamim Hamid [2024] 17 LM (AD) 124.
7Thus, the requirement of depositing at least 50% of the amount of the dishonoured cheque provided in section 138A of Act of 1881 is a condition precedent, a sine qua non, for preferring an appeal, and cannot be given a go-by or bypassed. The condition of depositing the 50% amount of the dishonoured cheque and the right of appeal are therefore, interdependent and inseparable. The court has no latitude to dispense with this condition for the purpose of enabling a convict to present an appeal and to enlarge him on bail ignoring the binding precedent laid down by our apex court. The impugned order of the court below, therefore, calls for no interference.
8Accordingly, the Rule is discharged as being per incuriam and devoid of merit, without, however, any order as to costs.
9The ad-interim order of bail granted at the time of issuance of the Rule is hereby recalled and cancelled.
10The convict-petitioner is directed to surrender before the trial court within 30 (thirty) days from the date hereof to serve the remaining period of his sentence, failing which the trial court shall take necessary steps to secure his arrest in accordance with law.
11Communicate the judgment and order at once. P.K. Barai/A.B.O
Related summaries.
From the record to your case.
Our advocates appear before both divisions of the Supreme Court. These are the practice areas that handle matters like this one.
- Supreme Court practice in BangladeshSlips, mentioning, cause lists and appearances→
- Case JourneysHow a case moves through the courts, step by step→
- Limitation and appeal deadline calculatorKnow your last day to file→
- Curative petitions in BangladeshFinality, article 104 and the case for reform→
- Constitution guideEvery article and amendment, animated→
- Bangladesh legal glossaryBangla and English legal terms, explained→
