2013 P Cr. L J 175
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
NASEEB GUL ---Appellant
Versus
AMIR JAN and ano ther---Respondents
Criminal Acquittal Appeal No.216 of 2010, decided on 3rd September, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 489 -F---Dishonestly issuing a cheque ---Prerequisites ---Dishonesty on part of the payer -
--Scope ---To constitute an offe nce under S.489 -F, P.P.C., dishonesty on part of the payer was
a condition precedent in issuance of a cheque towards repayment of a loan or fulfilment of an
obligation ---Mere issuance of a cheque and same being dishonoured, by itself was not an
offence, un less and until dishonesty on part of the payer was proved.
(b) Penal Code (XLV of 1860) ---
----S. 489 -F---Dishonestly issuing a cheque ---"Dishonesty", meaning of ---"Dishonesty"
meant a fraudulent act or intent to defraud others, especially creditors a nd lien holders.
(c) Penal Code (XLV of 1860) ---
----S. 489 -F---Dishonestly issuing a cheque ---"Dishonour", meaning of ---Word "dishonour"
used in S.489 -F, P.P.C meant failing to honour a cheque, with an intent to defraud and befool
a payee towards rep ayment of a loan or fulfilment of an obligation, just to disgrace or put him
in a state of shame.
(d) Penal Code (XLV of 1860) ---
----S. 489 -F---Criminal Procedure Code (V of 1898), S. 417(2 -A)---Dishonestly issuing a
cheque ---Appeal against acquittal ---Appreciation of evidence ---Cheque not issued wilfully
and intentionally ---Dishonest intention not proved ---Transaction forming liability for
payment not disclosed ---Accused (respondent) was alleged to have issued a cheque to the
complainant (appellant) which was dishonoured on presentation ---Trial Court convicted and
sentenced the accused but he was acquitted of the charge by the First Appellate Court ---
Validity ---Complainant had admitted catching hold of the accused for repayment of loan to
which the ac cused replied that he had no amount to repay the loan ---Despite such
circumstances, accused was forced to issue the cheque in question, therefore, it was not
voluntary rather the complainant used force and compelled the accused to issue the cheque ---
Facts proved that accused did not issue the cheque wilfully and intentionally ---Bank
representative, appearing as prosecution witness, admitted in his cross -examination that
complainant had a signed blank cheque book pertaining to the account of the accused and
complainant separated one leaf from the said cheque book, filled it and presented it to the
bank ---Bank representative had informed the complainant that there was no amount in the
account of the accused, but despite such fact complainant opted to produce s ame, which
showed that he wanted to trap the accused ---Complainant did not produce a single witness to
prove the dishonest intention of the accused ---Complainant alleged that accused owed him an
amount but did not disclose the terms and conditions of the t ransaction between them or its
mode of payment ---Complainant used the cheque according to his own whims and wishes,
therefore, in the event of same being dishonoured, accused could not be held responsible for
the same ---Appeal against acquittal was dismiss ed in circumstances.
Rizwan Ejaz and Adnan Ejaz for Appellant.
Date of hearing: 24th July, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---Briefly stated facts of the case are that the
appellant registered an F.I.R. No.160 of 2009, under section 489 -F, P.P.C. against the private
respondent. It is alleged that the respondent issued a Cheque bearing No.285057 dated 20th
May, 2009 amounting to Rs.10,12,000, which was dishonoured. After completion of the
investigation, the challan was submitted before the C ourt of the Judicial Magistrate, Loralai.
The prosecution, in support of its case, produced four witnesses along with copy of the
cheque and a certificate issued by the bank. In reply, the respondent was examined under
section 342, Cr.P.C. After conclusion of the case, the trial Court convicted and sentenced the
respondent by mean of the judgment dated 21st July, 2010. Feeling aggrieved, he preferred
an appeal before the Court of the Sessions Judge, Loralai, which was allowed and the
respondent was acquitte d of the charge vide order dated 13th August, 2010, hence this
appeal.
2. Learned counsel for the appellant stated that the Sessions Judge, Loralai, while
allowing the appeal, has failed to follow the relevant provisions of law and has come to a
wrong co nclusion. He stated that the issuance of the cheque and the fact that it was
dishonoured has been successfully proved by the appellant through the reliable witnesses,
therefore, there was no option for the appellate Court, except to believe the evidence, b ut the
Sessions Judge by mis -exercise of the jurisdiction has come to a wrong conclusion, therefore,
the order impugned amounts to mis appreciation and non -appreciation of the evidence, which
is an illegality and irregularity, on the basis of which, the same is liable to be set aside.
3. We have heard the learned counsel for the appellant and have gone through the
record. It is the case of the appellant that since the cheque has been dishonoured, therefore,
the private respondent was liable to b e sentenced. Before dilating upon the merits of the case,
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 fulfilment of an obligation which is dishonoured 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 honoured and that the
bank was at fault in not honouring the cheque.
To constitute an offence under this section, dishonesty on the part of the payer is a
condition precedent in issuance of a cheque towards re -payment of loan or fulfilment 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 a person, issuing it. The words "whoever
dishonestly issues a cheque" used in this section shows 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. Simi larly, the word "dishonour", used in this section means fail to honour a cheque,
with an intent to defraud and befool a payee towards re -payment of a loan or fulfilment
of an obligation just to disgrace or put him in a state of shame. Hence, mere issuance of a
cheque and it being dishonoured by itself is not an offence, unless and until dishonesty on the
part of a payer is proved.
On the touchstone of the above analysis, it is to be considered as to whether the
cheque was issued by the responde nt No.1 to the appellant dishonestly, which was
dishonoured?
In this behalf, the statement of the appellant is of a great importance, relevant portion
whereof is as under: --
The appellant himself stated that he caught hold of the respondent No.1 and asked
him to pay the loan, to which the respondent replied that he has no amount to pay. Despite
such fact, the respondent was forced to i ssue the cheque, which he did, as such, it was not
voluntary, rather the appellant by use of force, compelled the respondent to issue it. This fact
proves that the respondent did not issue the cheque wilfully and intentionally. Similarly, the
P.W.2 who is representative of the Bank, admitted in a cross -examination that the appellant
had a blank cheque book, pertaining to the account of the respondent, signed by him. Out of
the said cheque book, the appellant separated one leaf, filled it and presented it to him. The
witness informed the appellant that there was no amount in the account of the respondent, so
why he was presenting the cheque, but despite such fact, the appellant opted to produce it,
which shows that he wanted to trap the respondent. The appell ant did not produce a single
evidence to prove the dishonest intention of the respondent, nor did the appellant utter a
single word to show his disgrace or feeling of shame due to dishonour of the cheque, The
appellant alleged that the amount was due again st the respondent No.l, which he had to pay.
Considering such contention, the appellant did not disclose as to what were the terms and
conditions of the transaction, if any? And what was the mode/date(s) of payment. The
statement of the P.W. proves that th e appellant had a complete cheque book of the respondent
No.1, but it is not known as to under which circumstances, the appellant was able to obtain it.
The appellant used the cheque according to his own whims and wishes, therefore, in case the
cheque is bounced by the respondent No.1 cannot be held responsible for it. The
evidence and the material available on record do not constitute an offence under section 489 -
F, P.P.C., rather the statements of the appellant and his witnesses absolve the respo ndent
No.1 from the allegation.
5. Even otherwise, after the acquittal, the respondent No.1 earned a double presumption
of innocence in his favour, therefore, to disturb such findings, strong and cogent evidence is
required, which is lacking in the prese nt case. The learned counsel for the appellant has failed
to point out any illegality or irregularity, therefore, we are not inclined to interfere into a
well-reasoned order of acquittal passed by the learned Sessions Judge, Loralai.
Thus, in view of wh at has been stated and discussed hereinabove, the appeal is
accordingly dismissed in limine.
MWA/87/Q Appeal dismissed.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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