2025 P Cr. L J 1102
[Balochistan]
Before Rozi Khan Barrech, J
MIR AHMED KHAN--- Petitioner
Versus
The STATE--- Respondent
Criminal Revision No. 67 of 2024, decided on 15th November, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 489 -F---Dishonestly issuing a cheque ---Essential ingredients of offence---To constitute
an offence under S. 489- F, P.P.C., dishonesty on the part of the payer is a condition
precedent in the issuance of a cheque towards re- payment of a loan or fulfillment of an
obligation---Thus, it is for the Court to consider that under which circumstances, the cheque
was issued and what was the intention of the person, issuing it ---Hence, mere issuance of a
cheque and it being dishonored by itself is not an offence, unless and until dishonesty on the part of a payer is proved.
Allah Ditta v. The State 2013 SCMR 51 and Muhammad Sultan v. The State 2010
SCMR 806 rel.
(b) Penal Code (XLV of 1860)---
----S. 489- F---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Dishonestly issuing a cheque ---
Appreciation of evidence ---Withholding material witness ---Effect ---Accused was charged for
issuing a cheque in favour of complainant, which was dishonoured when presented before the concerned bank ---Complainant stated in his statement that the accused had been his friend
for the last fifteen years and he purchased a house from him and an outstanding amount of Rs.58,00,000/ - was due against the accused which he had to pay to him ---In that regard, the
accused dishonestly issued a cheque to the complainant which was dishonored on presentation due to the fact that the account was dormant ---During cross -examination,
complainant admitted that the house in question was mortgaged by one Mr. "S" with the National Bank of Pakistan meaning thereby that factually the house belonged to that Mr. "S" -
--In view of such fact, the question arose that in what capacity the complainant sold out the house which was in the name of Mr. "S" ---Moreso the prosecution neither cited said Mr. "S"
as a witness in the challan nor produced him before the Court ---In order to establish the
version put forth by the complainant, the presence of such important witness would have further strengthened the prosecution's version--- Non-production of such an important witness
as provided under Art.129 (g) of Qanun- e-Shahadat, 1984, would cast adverse inference,
which raised the irresistible conclusion that if the said witness had been produced he would not have supported the prosecution version--- Complainant neither produced any receipt of
the alleged transaction effected between him and the accused in respect of the house in question nor any mutation entries, which were in the name of the complainant, were produced before the Trial Court ---Appeal against conviction was allowed, in circumstances.
Lal Khan v. The State 2004 SCMR 1847 rel.
(c) Penal Code (XLV of 1860)---
----S. 489- F---Dishonestly issuing a cheque ---Appreciation of evidence ---Contradictions
and improvements in the statement of complainant ---Accused was charged for issuing a
cheque in favour of complainant, which was dishonoured when presented before the concerned bank--- Complainant, during cross -examination changed his version with
respect to the purchase of the house by the accused from him and he stated that he sold out three vehicles to the accused and the accused gave some amount to him and in respect o f the other outstanding amount he gave a cheque to him ---Complainant also
made dishonest improvement in his statement when for the first time he introduced
allegation of purchasing of the vehicle by the accused from him ---Change in the version
of the complainant was not an outcome of frail human memory, rather was deliberately made with a nefarious design of bringing his testimony in conformity with the alleged cheque issued by the accused in his favour, thus, it in no manner could be brushed aside -
--Moreover, it was the purity of a testimony which led a Court to pronounce a guilty
verdict and if such purity was polluted through dishonest improvements, the eye -witness
lost his credibility rendering his evidence not worthy of any credence ---Appeal against
conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 489- F---Dishonestly issuing a cheque ---Appreciation of evidence ---Criminal
liability in case of dishonouring of cheque ---Scope ---Accused was charged for issuing a
cheque in favour of complainant, which was dishonoured when presented before the
concerned bank---Cheque being the mode of payment must appear to have been issued against business consideration or any other dealing of the date and time thereof, showing that the issuer was liable to pay the amount for the consideration of which he had issued the cheque ---If the issuance of such cheque was no meaningful transaction creating an
instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would prima -facie accrue in case of any cheque so issued
and dishonored, since where there was no such liability there was no fraud or dishonesty---Admittedly, in the present case the complainant had absolutely failed to establish on record that there had been any transaction between him and the petitioner for which the cheque had been issued and subsequently was declared dishonored---
Appeal against conviction was allowed, in circumstances.
Syed Ayaz Zahoor for Petitioner.
Abdul Karim Malghani for the State.
Babar Abbas and Adnan Ejaz Sheikh for the Complainant.
Date of hearing: 11th November, 2024.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this criminal revision petition filed under
Sections 435 and 439 Cr.P.C, the petitioner has impugned judgment dated 01.08.2024 passed by learned Additional Sessions Judge -IV Quetta ("appellate court") in Criminal Appeal No.
02/2024 as well as judgment dated 12.03.2024, passed by the learned Judicial Magistrate -
XI/FCM/MTMC -VI, Quetta (trial court) in criminal P.P.C Case No. 13/2023, in FIR No.
27/2023 PS City Quetta, District Quetta whereby he was convicted under Section 489- F of
Pakistan Penal Code 1860 and sentenced to suffer RI for three years and to pay fine of Rs.40,000/ - in default whereof he was to further suffer SI for six months. The petitioner was,
however, extended the benefit of Section 382- B Cr.P.C.
2. Precisely the prosecution case is that in pursuance of the purchase of a house (Iqra
City) an outstanding amount of Rs.58,00,000/ - was due against the petitioner/accused which
he had to pay to the complainant, the accused dishonestly issued a cheque bearing No. 1721143501 dated 31.12.2022 valuing Rs.58,00,000/ -which was dishonored on presentation
due to account being in dormant. Hence, the crime report.
3. On completion of the usual investigation, a challan of the case was submitted before
the trial court, where a formal charge was framed and read over to the accused to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as six witnesses. Thereafter statement of the accused was recorded under section 342 Cr.P.C, wherein he once again denied the allegation levelled in the prosecution case. The accused did not record his statement on oath under Section 340 (2) Cr.P.C., however he produced one witness in his defense.
4. The trial court, after hearing the parties and evaluating evidence, convicted and
sentenced the petitioner in the aforesaid terms. The appeal filed by the petitioner was also
dismissed by the appellate court.
5. I have heard the learned counsel for the parties and carefully scanned the material
available on record.
6. Before proceeding further, it would be appropriate to reproduce section 489- F, P.P.C.
as under: --
"489 -F Dishonestly issuing a cheque: ---Whoever dishonestly issues a cheque towards
re-payment of a loan or fulfillment of an obligation which is dishonored on
presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honored and that the bank was at fault in not honoring the cheque".
7. To constitute an offence under this section, dishonesty on the part of the payer is a
condition precedent in the issuance of a cheque towards re -payment of a loan or fulfillment
of an obligation. Thus, it is for the Court to consider that under which circumstances, the cheque was issued and what was the intention of the person, issuing it. The words "whoever dishonestly issues a cheque" used in this section show the intention of the legislature that to constitute an offence, it must be proved that the cheque has been issued dishonestly. Dishonesty means a fraudulent act or intent to defraud others, especially creditors and lien holders. Similarly, the word "dishonor", used in this section means failure to honour a cheque, with an intent to defraud and befool a payee towards re -payment of a loan or
fulfillment of an obligation just to disgrace or put him in a state of shame. Hence, the mere
issuance of a cheque and it being dishonored by itself is not an offence, unless and until dishonesty on the part of a payer is proved.
8. Dishonest intent is the basic requirement, while the purpose of its issuance must be
either repayment of loan or fulfillment of any obligation, and arrangements with the Bank to ensure the cheque is honored are the remaining requirements. It was held by the honorable Supreme Court in the criminal petition "Allah Ditta v. The State", reported in SCMR 2013 page 51 that:
"----Every transaction where a cheque is dishonored may not constitute an offence.
The foundational elements to constitute an offence under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfillment of an obligation and lastly that the cheque in question is dishonored."
The pre -conditions to make out an offence under section 489- F, P.P.C. was
determined by the honorable Supreme Court while deciding the criminal appeal "Muhammad Sultan v. The State", reported in 2010 SCMR page 806. It was held that:
"A perusal of section 489- F, P.P.C., reveals that the provision will be attracted if the
following conditions are fulfilled and proved by the prosecution: ----
"(i) issuance of cheque;
(ii) such issuance was with dishonest intention.
(iii) the purpose of issuance of cheques should be: ---
(a) to repay a loan; or
(b) to fulfill an obligation (which in wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds person to some performance).
(iv) on presentation, the cheque is dishonoured".
However, a valid defence can be taken by the accused, if he proves that:
(i) he had made arrangements with his bank to ensure that the cheques would be honoured; and
(ii) that the bank was at fault in dishonoring the cheque.
If the accused establishes the above two facts through tangible evidence and that too
after the prosecution proves the ingredients of the offence then he would be absolved from the punishment."
9. On the basis of the guiding principles as determined the instant case has to be
assessed to arrive to a correct decision.
10. The entire case is based on the testimony of the complainant/PW -1 being the star
witness of the case. He stated in his statement that the accused Mir Ahmed has been his friend for the last fifteen years and the accused purchased a house (Iqra City) from him and an outstanding amount of Rs.58,00,000/ - was due against the accused which he had to pay
to him. In this regard, the accused dishonestly issued a cheque bearing No. 1721143501 dated 31.12.2022 to the complainant which was dishonored on presentation due to the fact that the account was in dormant. During cross -examination, he admitted that the house in
question was mortgaged by one Salah ud Din with the National Bank of Pakistan meaning thereby that factually the house belonged to one Salah ud Din. In view of such fact, the question arises that in what capacity the complainant sell out the house which was in the name of Salah ud Din. Moreso the prosecution neither cited the said Salah ud Din as a witness in the challan nor produced him before the court. In order to establish the version put forth by the complainant, the presence of such important witness would have further strengthened the prosecution's version. Non -production of such an important witness as
provided under Article 129 (g) of Qanun- e-Shahadat Order 1984 and dictum laid down by
the Hon'ble Supreme Court in the case of Lal Khan v. The State (2004 SCMR 1847) would cast adverse inference, which brings me to the irresistible conclusion that if the said witness had been produced he would not have supported the prosecution version.
11. The complainant neither produced any receipt of the alleged transaction affected
between him and the accused in respect of the house in question nor any mutation entries,
which were in the name of the complainant were produced before the trial court. On the
other hand, while the complainant appeared before the court, during cross -examination he
changed his version with respect to the purchase of the house by the accused from him and
he stated during cross -examination that he sold out three vehicles to the accused and the
accused gave some amount to him and in respect of the other outstanding amount he gave a cheque to him. The complainant also made dishonest improvement in his statement when for the first time he introduced about purchasing of the vehicle by the accused from him. I am convinced that the change in the version of the complainant was not an outcome of frail human memory, rather was deliberately made with a nefarious design of bringing his testimony in conformity with the alleged cheque issued by the accused in his favour, thus, it in no manner can be brushed aside. It is the purity of a testimony which leads a court to pronounce a guilty verdict and if such purity is polluted through dishonest improvements, the eye -witness loses his credibility rendering it not worthy of any credence.
12. The prime question is whether any transaction has taken place between the
complainant and the petitioner or not. The complainant did not produce any agreement in respect of purchasing the house or purchasing of the vehicles by the petitioner, which is the basic document to establish the relationship between the complainant and the accused/petitioner. It has been observed that the statement of PW- 1 is silent with regard to
the place where such a transaction took place. Furthermore, he has failed to produce a single document to establish the existence of any transaction allegedly carried out between him and the accused in respect of purchasing of the vehicle or purchasing of the house. Suffice to state here that a cheque being the mode of payment must appear to have been issued against the consideration of business consideration or any other dealing of the date and time thereof, showing that the issuer is liable to pay the amount for the consideration of which, he has issued the cheque. If the issuance of such cheque is no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would primafacie accrue in case of any cheque so issued and dishonored, since where there is no such liability there is no fraud or dishonesty referred to above. Admittedly the complainant has absolutely failed to establish on record that there had been any transaction between him and the petitioner for which the cheque had been issued and subsequently was declared dishonored.
In view of the above discussion, by extending the benefit of the doubt to the
petitioner, judgments dated 01.08.2024 passed by learned Additional Sessions Judge -IV
Quetta in Criminal Appeal No. 02/2024 as well as judgment dated 12.03.2024, passed by the
learned Judicial Magistrate -XI/FCM/MTMC -VI, Quetta in P.P.C Case No. 13/2023 are
hereby set aside. The petitioner is acquitted of the charge under Section 489 -F P.P.C in FIR
No. 27/2023 PS City Quetta, District Quetta. The petitioner is on bail. His bail bonds stand
discharged.
JK/154/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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