Landmark Judgement of the Supreme Court on Dishonour of Cheque: Md. Abul Kaher Shahin Vs. Emran Rashid and another

Name of the Case: Md. Abul Kaher Shahin Vs. Emran Rashid and another (Criminal Appeal No- 63-66 of 2017) 

Reference: 14 SCOB (2020) AD, 19 ALR (AD) 56-64

 

Facts:

 

In pursuance with the documents, Emran Rashid Chowdhury, a resident of Sylhet, issued four cheques to Md Abul Kaher Shahin worth Tk 45.0 million as advance on condition that Abul Kaher would arrange a land purchaser within 90 days for selling a land of 30 Katha in Gulshan area of Dhaka. Abul Kaher Shahin though failed to bring any purchaser, he submitted the cheques in the bank concerned. But the cheques were dishonoured because the payment had been stopped by drawer of the cheque. On this fact he filed four cases under section 138 of the Negotiable Instrument Act (NI Act), 1881 against Emran Rashid Chowdhury, the cheque drawer.

 

Following the cases, Metropolitan Sessions Judge of Sylhet convicted Imran Rashid Chowdhury, and punished with simple imprisonment for a period of four years, one year in each case, and fined Tk 90.0 million. High Court Division overruled verdict of the Trial Court upon hearing preferred by the cheque drawer and acquitted him from all the charges brought against him. Then Criminal Appeal Nos. 63-66 of 2017 was filed the cheque holder in the Appellate Division of the Supreme Court against the verdict of the High Court Division. After hearing the appeal, the apex court upheld the judgement of the High Court Division.

Issue:

The issue considered while executing the case is whether stopping the payment of the cheque constitutes offence under section 138 of the NI Act, 1881 even though the consideration was not fulfilled.     

  

Decision:

 

According to the judgment, as per Section 43 of the NI Act, if the 'Consideration' for which the check was given is not met or if there is no 'Consideration', the check drawer has no liability. Thus, the respondent’s instruction not to encash the impugned cheques does not constitute any cause of action under section 138 of the Negotiable Instruments Act, 1881.

Section 43 of the Act of 1881 states that "a negotiable instrument made, drawn, accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction........." Again section 118 of NI Act postulates that "Until the contrary is proved, the following presumptions shall be made: (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration." The aforesaid sections clearly established that consideration is precondition for negotiable instruments.

 The Appellate Division observed that

“the bank returned the cheques with endorsement, “payment stopped by the drawer”. Where the amount promised shall depend on some other complementary facts or fulfilment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque. As such dishonesty or fraud cannot be attributed to the respondent in giving stop payment instructions. Consequently, the question of committing an offence by the accused respondent punishable under section 138 of the Act does not arise.”    

 

However, the bank returned the cheques with endorsement, “payment stopped by the drawer”. When an amount is promised to be paid by issuing a cheque, it depends on fulfilment of some complementary issues like fulfilment of consideration or other promise from part of the cheque holder. If those promises are not fulfilled, the drawer of the cheque cannot be held liable for dishonour of cheque under section 138.

 

In the instant case, the drawee of the cheque failed to fulfil consideration as he could not bring any purchaser for the said property, dishonesty or fraud cannot be proved against respondent in giving stop payment instructions. Consequently, the accused is not punishable under section 138 of the Negotiable Instruments Act, 1881.    

 

The same view was taken into consideration by the Appellate Division in the case of Mahmudul Hasan Vs The State and another (Criminal Appeal No. 10468 of 2017)