Section 138 National Instruments ACT
Published: 08:03 AM, 31 July 2026 Last Update: 08:05 AM, 31 July 2026
HC for Recovering Cheque Amount, Not Jailing Accused Individuals
The High Court has observed that the primary objective of a case filed under Section 138 of the Negotiable Instruments (NI) Act is to ensure recovery of the cheque amount, not to send the accused to prison. The court stated that imprisonment in such cases is a harsh punishment and should not be imposed except under special and appropriate circumstances.
The observation was made in the judgment of Md. Alauddin vs. The State and Others by a single bench of the High Court comprising Justice Dr. Md. Bashir Ullah. The written copy of the judgment was published on Thursday (July 30), after the verdict was delivered on July 22.
In the judgment, the court upheld the accused individual's monetary penalty but cancelled the sentence of imprisonment. The court also directed the accused to pay the remaining Tk 250,000 of the cheque amount within three months. If the amount is not paid within the stipulated period, the accused will have to serve two months' imprisonment. However, even after serving the jail term, he will not be exempted from the obligation to pay the fine.
Referring to the precedent set in the case of "Aman Ullah vs. The State," the High Court stated that imprisonment under Section 138 of the NI Act is an extremely severe punishment and does not serve any punitive purpose. The court noted that it fully agreed with the principles established in that case.
According to the case records, accused Md. Alauddin borrowed Tk 500,000 from the complainant (who was the plaintiff in the Third Joint Sessions Court of Barishal) for the purpose of cattle trading. To repay the loan, Alauddin issued a cheque from the Rupali Bank Limited, Barishal Bazar Road Branch. When the cheque was deposited on November 2, 2020, it was dishonoured due to insufficient funds.
Later, after a legal notice was served and the accused failed to repay the money within the specified period, the complainant filed a case on December 20, 2020, before the Senior Judicial Magistrate (Cognizance Court) in Barishal under the NI Act. The court took cognizance of the case and sent it to the Barishal Sessions Judge's Court. The Sessions Judge then transferred the case to the Third Joint Sessions Judge's Court of Barishal. On October 14, 2021, that court framed charges against Alauddin under Section 138 of the NI Act.
Subsequently, on January 18, 2022, the Third Joint Sessions Judge's Court in Barishal convicted Md. Alauddin under Section 138 of the NI Act and sentenced him to six months of simple imprisonment along with a fine of Tk 500,000, equivalent to the cheque amount.
Later, after depositing half of the fine amount (Tk 250,000), Alauddin filed an appeal before the Barishal Sessions Judge's Court. The appellate court (Barishal Speedy Trial Tribunal and Special Sessions Judge's Court) dismissed his appeal on December 14, 2022, upholding both the imprisonment and the fine.
Challenging the lower court's judgment, Alauddin filed a revision petition before the High Court. On July 22, the High Court rejected the rule issued against the lower court's verdict but upheld the fine. At the same time, in the interest of justice, the court modified the sentencing portion of the lower court's judgment and cancelled the imprisonment sentence. In other words, the court maintained the financial penalty but removed the jail term.
The court directed Alauddin to pay the remaining amount of Tk 250,000 from the dishonoured cheque within three months of receiving a copy of the judgment. Failure to do so would result in two months' imprisonment. However, the judgment clarified that even after serving the jail sentence, the accused would not be relieved of his liability to pay the fine, and the amount could be recovered by the court under Section 386 of the Code of Criminal Procedure.
