The Appellate Division of the Supreme Court (SC) on Tuesday stayed the High Court (HC) verdict that ruled sending anyone to jail in cheque dishonour case is contrary to Article 32 of the Constitution.
Justice M Enayetur Rahim, Chamber Judge of the Appellate Division, passed the order after hearing a petition filed by the state seeking stay on the HC verdict.
Attorney General AM Amin Uddin appeared in the court hearing on behalf of the state. Assistant Attorney General Saiful Alam was also present at that time.
In the hearing Mr Attorney General said, “Arresting anyone under Section 138 of the Negotiable Instruments Act in cheque dishonour case was declared illegal by the High Court. However, the HC cannot declare a provision of a law unconstitutional without any judicial review under Article 102 of the Constitution. In this case, HC declared the provision unconstitutional following some criminal petitions which is not correct.”
After hearing, the Chamber Judge of the SC stayed the verdict till November 14 this year. It also asked the state to file a leave to appeal petition against the verdict by this time, said Assistant Attorney General Saiful Alam.
Following some criminal petitions, the High Court bench of Justice Md Ashraful Kamal on August 28 this year ruled that sending anyone to jail in cheque dishonour case is contrary to Article 32 of the Constitution.
In the verdict the court also observed that depriving a person of his personal freedom is unconstitutional, and imprisonment of a person in a check dishonour case under the Negotiable Instruments Act amounts to deprivation of personal liberty.
The judge has also suggested the National Parliament amend Section 138 of the Negotiable Instruments Act, 1881, for abolishing the provision of jail in check dishonour cases. Apart from this, the court has issued a guideline to follow for the settlement of dishonour cases until the amendment of Section 138 of the NI Act.
The High Court observed in the judgment that sending a person to jail or keep anyone in jail in a cheque dishonour case is a violation of Article 32 of the Constitution and Article 11 of the International Covenant on Civil and Political Rights. As a signatory country of the International Covenant on Civil and Political Rights, Bangladesh cannot send a person to jail in a cheque dishonour case.
The court took the example of the developed world and said that in various countries including Singapore, France, England, Australia, there is no provision of sending anyone to jail in check dishonour cases. In these countries, check dishonour cases are considered civil in nature.
The court observed that “no person can be imprisoned for failure to fulfil contractual obligations. Most of the people in Bangladesh will soon be in jail if they are sent jail for failure to fulfil the contractual obligations. No one wants it.”
The HC opined that the provision of sending anyone to jail under Section 138 of the Negotiable Instruments Act should immediately be scrapped. The court hoped that the Parliament will take initiative in this regard.
The High Court said, until the National Parliament amends the provision, the cases of check dishonour under Article 138 of the Negotiable Instruments Act will be negotiable. A fine of up to three times can be imposed in lieu of the jail sentence in all courts of the country having jurisdiction over cheque dishonour cases.
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