High Court Division · Criminal Revisional Jurisdiction
Md. Wali Ullah Patowari v State and another
Criminal Revision (TN) 3303/2019 · Decided 13 September 2026
Islami Bank Bangladesh Limited, Khulna Branch filed a complaint under section 138 of the Negotiable Instruments Act, 1881 alleging that a borrower's cheque for Tk.3,51,000, issued to discharge a loan, was dishonoured for insufficient funds and not paid after statutory notice. The Joint Metropolitan Sessions Judge, 2nd Court, Khulna convicted the accused and sentenced him to one year's simple imprisonment and a fine of Tk.3,51,000, and the Metropolitan Sessions Judge, Khulna dismissed his appeal. In revision, the High Court Division found that the complainant had complied with the procedure in section 138, filed the case in time and proved consideration, so the conviction was lawful. However, the bank admitted, and certified, that the convict had paid the entire cheque liability directly, and it did not object to the setting aside of imprisonment or refund of the 50% deposit. Relying on Aman Ullah v State, the court affirmed the conviction and fine, set aside the imprisonment and directed refund of the deposited amount.
- Q1
Whether the conviction under section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque issued to Islami Bank Bangladesh Limited was sustainable.
- Q2
Whether the sentence of imprisonment should be maintained where the convict had paid the entire cheque amount to the complainant bank during the proceedings.
- 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, so the conviction suffered from no illegality.
- The primary object of section 138 is to ensure payment of the cheque amount to the payee rather than to incarcerate the drawer.
- Where the entire cheque amount has already been paid, insisting on a custodial sentence may not serve any meaningful penal objective (following Aman Ullah v State, 73 DLR (2021) 541).
- The conviction and the fine of Tk.3,51,000 were maintained but the sentence of one year's simple imprisonment was set aside.
- As the convict had paid the full cheque amount directly to the bank, he was entitled to a refund of the 50% of the cheque amount deposited before the trial court when preferring the appeal.
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.
In the court’s own words.
Criminal Revision (TN) 3303/2019, as published by the Supreme Court of Bangladesh. 11 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
2(CRIMINAL REVISIONAL JURISDICTION)
Present:
Mr. Justice Md. Bashir Ullah
Criminal Revision No. 3303 of 2019
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. Wali Ullah Patowari
…Convict-Petitioner.
-Versus-
The State and another
… Opposite Parties.
Mr. Hossain Md. Borhan, Advocate
… 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 05.09.2019 passed by the learned Metropolitan Sessions Judge, Khulna in Criminal Appeal No.
422 of 2019, dismissing the appeal and thereby affirming the judgment and order of conviction and sentence dated 19.09.2018 passed by the learned Joint Metropolitan Sessions Judge, 2nd Court, Khulna in Metropolitan Sessions Case No. 418 of 2016 arising out of C.R Case No. 435 of 2015, convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period of 01(one) year and to pay a fine of Tk. 3,51,000/- (Three lac fifty-one 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.
5The facts, relevant for disposal of the Rule, in brief, are that opposite party No. 2, Islami Bank Bangladesh Limited, Khulna Branch as complainant instituted C.R Case No. 435 of 2015 before the Court of the Metropolitan Magistrate, Cognizance Court, ‘Ka’ Anchal, Khulna against the present petitioner, alleging inter alia that the accused obtained loan from the complainant-bank amounting to Taka 3,51,000/- (three lac fifty-one thousand). In discharge of the said liability, the accused issued cheque No. 8063361 dated
06.04.2015 in favour of the complainant for Taka 3,51,000/- (three lac fifty-one thousand). Upon presentation, the said cheque was dishonoured by the concerned bank on 10.05.2015 with the endorsement ‘insufficiency of funds’. Thereafter, a statutory legal notice was served on 21.05.2015 upon the petitioner demanding payment of the cheque amount, and the same was received by the accused on 27.05.2015. Despite receipt of the notice, the accused failed to comply with the same. Consequently, the complainant instituted the case on 05.07.2015.
6Upon receipt of the complaint petition, the learned Magistrate took cognizance of the offence and thereafter transmitted the case record to the learned Metropolitan Sessions Judge, Khulna. Subsequently, the same was transferred to the learned Joint Metropolitan Sessions Judge, 2nd Court, Khulna and the case was registered as Metropolitan Sessions Case No. 418 of 2016. The charge was framed against the accused under Section 138 of the Negotiable Instruments Act, 1881 on 13.07.2016, 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 witness while the defence examined 01 witness. The accused was examined under Section 342 of the Code of Criminal Procedure and reiterated innocence.
7Upon conclusion of the trial and after hearing the parties, the learned Joint Metropolitan Sessions Judge, 2nd Court, Khulna convicted the petitioner under Section 138 of the Negotiable Instruments Act of 1881 and sentenced him to suffer simple imprisonment for a period of 01 (one) year and to pay a fine of Taka 3,51,000/- (three lac fifty-one thousand) by judgment and order dated 19.09.2018.
8Challenging the conviction and sentence, the petitioner filed Criminal Appeal No. 22 of 2019 before the learned Metropolitan Sessions Judge, Khulna, who, upon hearing the parties, dismissed the same by judgment and order dated 05.09.2019, affirming the judgment and order of conviction and sentence.
9Being aggrieved by and dissatisfied with the judgment and order dated 05.09.2019, the petitioner preferred the
instant Criminal Revision before this Court and obtained the Rule.
10Mr. Hossain Md. Borhan, the learned Advocate appearing on behalf of the petitioner, submits that the petitioner has already paid the entire cheque liability amounting to Taka 3,51,000/- to the complainant-bank directly. He further submits that before preferring the appeal, the petitioner deposited 50% of the cheque amount, Taka 1,75,500/- before the concerned Court in compliance with the statutory requirement. So, the petitioner is entitled to have the deposited amount of Taka 1,75,500/- refunded to him. He finally prays for setting aside the conviction and sentence passed by the trial Court.
11Per contra, Mr. Md. Shofiul Aziz, the learned Advocate appearing on behalf of the opposite party No. 2, admits 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.
12He further submits that the complainant-bank has no objection if the amount deposited by the petitioner before the trial Court is refunded to him.
13He also submits that the bank has no objection if the substantive sentence of imprisonment imposed upon the petitioner is set aside.
14I have considered the submissions of the learned Advocates for the respective parties, perused the impugned judgments and orders, and materials on record.
15The record shows that the complainant has duly complied with the procedures 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 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.
16It 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. In this regard, the bank issued a certificate dated 20.11.2022. The certificate is reproduced below:
ইসলািম ব াংক বাংলােদশ িলিমেটড
AKANKITA CENTRE
B JASHORE ROAD (1st & 2nd Floor)
GAKBANGLA KHULNA
Islami Bank Bangladesh Limited BANGLADESH
Khulna Branch, Khulna. Phew 041-72006
Mob 01711-8077622 IF 1072
E-mail: khulnaislamibank.bd.com
/ / / / 5 / /
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20/11/22
Md. Yakub Ali
SVP& Head of Branch, AS No-1517
Islami Bank Bangladesh Ltd.
Khulna Branch, Khulna.
Cell: 01714-048007
26However, 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.
27I 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 subserve any meaningful penal objective.
28Considering 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 and pass a direction to refund the deposited money to the petitioner.
29In view of the foregoing discussions and ratio, the order of the Court is as follows:
30The conviction of the petitioner under Section 138 of the Negotiable Instruments Act, 1881 is hereby affirmed. However, the sentence is modified. The sentence of simple imprisonment for 01(one) year is set aside. The sentence of fine of Taka 3,51,000/-(three lac fifty-one thousand) is maintained. It appears from the record that the convictpetitioner deposited 50% of the cheque amount before the trial Court at the time of preferring the appeal. Subsequently, he deposited the entire value of the cheque directly to the complainant bank to adjust the liabilities, and hence he is entitled to refund the deposited amount lying with the trial Court. Consequently, the Court concerned is directed to refund the said deposited money to the accused-appellantpetitioner forthwith if it is not yet disbursed.
31In the result, the Rule is disposed of with modification of the sentence and with directions stated above. The convictpetitioner is released from his bail bond.
32Let a copy of the judgment along with the Lower Court Records (LCR) be communicated to the Court concerned forthwith.
(Md. Bashir Ullah, J)
33Md. Sabuj Akan Assistant Bench Officer
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