SC stays HC order on cheque dishonour case

The Appellate Division of the Supreme Court on Tuesday stayed the High Court verdict that advised the National Parliament to amend Section 138 of the Negotiable Instrument Act and abolish the jail provision in cheque dishonour cases.

The chamber judge of the Appellate Division Justice M Enayetur Rahim stayed the HC verdict following an appeal filed by the government for staying the operation of the HC verdict regarding the cheque dishonour case.

The chamber court also fixed November 14 for a hearing on the government appeal at the full bench of the Appellate Division.

The government on Monday filed an appeal with the Appellate Division of the Supreme Court challenging the High Court verdict that advised the National Parliament to amend Section 138 of the Negotiable Instrument Act and abolish the jail provision in cheque dishonour cases.

It also observed that sending a person to jail for a dishonoured cheque is contrary to Article 32 of the country's Constitution.

"We have filed an appeal with the Appellate Division of the Supreme Court for staying the operation of the High Court verdict.

The Chamber judge of the Appellate Division will hold a hearing on the government petition," attorney general AM Amin Uddin said on Monday.

In a verdict earlier on August 28, the HC observed that sending a person to jail in connection with cheque dishonour case is contradictory with the Article 32 of the Constitution as it deprived the personal freedom of the person.

“Imprisonment of a person in a cheque dishonour case under the Negotiable Instruments Act is tantamount to deprivation of personal liberty,” a single HC bench comprised of Justice Ashraful Kamal came up with the observations while disposing of some cases relating to cheque dishonour.

However, the HC bench suggested the parliament bring an amendment to Section 138 of the Negotiable Instruments Act and abolish the provision of jail in cheque dishonour cases.

The HC bench gave some guidelines for settling the cheque dishonour-related cases until Section 138 of the Negotiable Instruments Act is amended.

Until the National Parliament will bring an amendment to Section 138 of the Negotiable Instrument Act, the case of cheque dishonour would be negotiable, the HC bench said.

However, the HC bench said that the concerned court can impose a fine of up to three times considering the importance of the cheque dishonour cases.

Citing some examples of the developed countries of the world, the HC bench said that in various countries including Singapore, France, England, Australia, there is no provision for sending to jail in connection with cheque dishonour cases.

In these countries, cheque dishonour cases are considered civil in nature.

But, the Negotiable Instruments Act has been made quasi-criminal after bringing an amendment to the Penal Code of 1994.

The HC bench observed that no person can be imprisoned for failure to fulfill contractual obligations.

If sent to jail for failure to fulfill contractual obligations, most people in Bangladesh will soon be in jail. No one wants it, the HC bench noted.

The court felt that Article 138 of the Negotiable Instruments Act must be quickly amended and the provision of imprisonment must be abolished.

The court expressed hope and said, “We hope that the National Parliament will amend Section 138 of the Negotiable Instruments Act very soon.”

The HC ordered the concerned authorities to send copies of the verdict to all courts and the law ministry in the country.