The accused sentenced for more than two years in the corruption case is constitutionally ineligible for the Jatiyo Sangsad elections: The Supreme Court

High Court Justice Md. A bench consisting of Nazrul Islam Talukder and Justice KM Hafizul Alam gave such observations in the verdict.

A full copy of the judgment was published on the Supreme Court's website on October 22.

The High Court has suspended the punishment and sentence given by the judicial court in separate cases of corruption of five leaders of BNP.

In the judgment, the court said, there is no opportunity to suspend the sentence of the appellants to facilitate their participation in the parliamentary elections.

Anti-Corruption Commission lawyer Khurshid Alam Khan said at that time, the court has given an opinion that no one can participate in the elections if he is sentenced for more than two years. An appeal against the sentence is pending, the petitioner is on bail, the order of fine has been stayed these cannot be grounds for stay of sentence or sentence, the court said. Constitution is the supreme law. Article 66 (2)(d) of the Constitution prohibits selection of convicts.

This condition has is laid down in article 66 of the Constitution which contains “A person shall not be qualified to be elected as, and to be, a member of Parliament who has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release”. 

BNP leader A ZM Zahid Hossain's lawyer Khairul Alam Chowdhury said that there is no opportunity to suspend the sentence according to Section 426 of the Criminal Procedure Code. The court also said that while the appeal filed by an accused person in the Appellate Court against the judgment of penalty and sentence is pending, that person cannot participate in the election.

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If the borrower fails to repay the loan, the guarantor is not barred from auctioning the property

As we know that banks or financial institutions can file artharin  suits against three  types of persons i.e. borrowers, mortgagor of security against loans and guarantor against loans under section 6 of the Artharin Adalat Ain, 2003 to recover loans by selling mortgaged properties through auction. But, dispute arises regarding the attachment and auctioning the property of guarantor when the borrower fails to repay the loan or the defaulted loan cannot be realized fully by selling the mortgaged property. Recently the Appellate Division of the Supreme Court of Bangladesh has passed a rule in this regard.

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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)    

 

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Tenure of life imprisonment: Ataur Mridha alias Ataur Vs The State

 

In spite of having contradictions on tenure of life imprisonment due to contradictory decisions of the Supreme Court, the matter is likely settled by the Appellate Division of the Supreme Court of Bangladesh in Ataur Mridha alias Ataur Petitioner Vs The State (Criminal Review Petition No. 82 of 2017).

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