2021 P Cr. L J 586
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD ASHRAF ---Petitioner
Versus
The STATE--- Respondent
Criminal Revision No. 33 of 2020, decided on 18th June, 2020.
(a) Penal Code (XLV of 1860) ---
----S. 489- F---Dishonestly issuing a cheque ---Scope ---Mere issuance of a cheque and it being
dishonoured by itself was not an offence, unless dishonesty on the part of payer is proved.
Allah Ditta v. The State 2013 SCMR 51 and Muhammad Sultan v. The Stat e 2010
SCMR 806 rel.
(b) Penal Code (XLV of 1860)---
----S. 489- F--- Dishonestly issuing a cheque ---Appreciation of evidence ---Benefit of doubt ---
Accused issued cheques, which were dishonoured on presentation, due to insufficient balance
in the account ---Record showed that the entire case was based on the testimony of the
complainant being star witness of the case--- Complainant stated in his statement that in the
month of March 2017, the accused started partnership with a Trading Company and was doing business with him of Rs.30000000/ ----In the meanwhile, Rs. 1,48,000,00/ - was
outstanding against him ---On demand of the same, the accused first lingered on the matter
but consequently issued cheques ---On presentation, the same were dishonoured due to
insufficie nt balance in the account ---Complainant did not produce any agreement in respect
of business partnership, which was the basic document to establish the relationship between the complainant and accused ---Statement of complainant was silent with regard to place
where such transaction took place ---Furthermore, complainant had failed to produce a single
document to establish the existence of any partnership allegedly carried out between him and the accused ---Complainant had also failed to give the full particul ars of the said partnership--
-Complainant could not establish on record that there had been any transaction between him
and the accused for which the cheques had been issued and subsequently were declared dishonoured--- Complainant stated during cross -exami nation that he himself filled the cheque
at the instance of the accused, meaning thereby that the cheque was filled/written by the complainant himself and he also mentioned the amount in the said cheque ---Said fact proved
that the accused did not issue the cheque wilfully and intentionally--- Similarly
witness/representative of the Bank stated during cross -examination that there was cutting on
the cheque of Rs.600000/= ---Said aspect of the matter casted serious doubt in the prosecution
case which was not con sidered by the Trial Court as well as appellate court ---Criminal
revision was allowed and accused was acquitted by setting aside the impugned judgments
passed by the Trial Court and appellate court.
(c) Penal Code (XLV of 1860)---
----S. 489- F--- Dishones tly issuing a cheque ---Appreciation of evidence ---Delay of about six
months in lodging the FIR ---Effect ---Accused issued cheques, which were dishonoured on
presentation, due to insufficient balance in the account ---Record showed that the alleged
cheques were issued on 18.08.2017 and 28.9.2017, but the application for registration of the FIR was submitted on 17.03.2018 and FIR was lodged on 26.08.2018 with delay of six months without an explanation, however, complainant stated during cross -examination that
the application for registration of the FIR was written by an Advocate in his office on
17.03.2018, meaning thereby that the complainant lodged the FIR after deliberation and consultation, which created serious doubt in the prosecution case ---Criminal revis ion was
allowed and accused was acquitted by setting aside the impugned judgments passed by the Trial Court and appellate court.
(d) 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 evidence ---Effect ---Accused issued
cheques, which were dishonoured on presentation, due to insufficient balance in the account -
--Complainant stated in his report as well as in his statement before the court tha t he was
Manager of the Trading Company, meaning thereby that complainant was not the owner of
the said Trading Company---In such view of the fact, the question arose that in what capacity the accused had given the cheques to him ---Moreso, prosecution neit her cited the owner of
the Trading Company as well as his brother as witnesses in the challan nor produced them before the Trial Court ---In order to establish the version put forth by the complainant, the
presence of said important witnesses would have fur ther strengthened the prosecution
version---Non -production of such important witnesses, as provided under Art. 129(g) of
Qanun- e-Shahadat, 1984 would cast adverse inference, that if the said witnesses had been
produced they would not have supported the prosecution version ---Criminal revision was
allowed and accused was acquitted by setting aside the impugned judgments passed by the Trial Court and appellate court.
Lal Khan v The State 2004 SCMR 1847 rel.
Sohail Ahmed Rajpoot for Petitioner.
Muhammad Qazzafi Khan for the Complainant.
Ameer Hamza Mengal, D.P.G. for the State.
Date of hearing: 11th June, 2020.
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 10.03.2020,
passed by learned Additional Sessions Judge -IX Quetta ("appellate court") in Criminal
Appeal No. 01/2020 as well as judgment dated 25th February 2020, passed by the learned Judicial Magistrate (trial court) in criminal P .P.C. Case No.66/2018, 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.20,000/ - in default whereof he was to further suffer SI for
three months. The petitioner was, however, extended benefit of section 382- B, Cr.P.C.
2. Precisely the prosecution case is that on 17.03.2018, the complainant Ahmed Shah
son of Khan Muhammad lodged FIR No. 50 of 2018, with Police Station City Quetta with the averment that he was manager of Abdul Shakoor Trading Company situated at New Adda Chorangi Post Office Street No. 4, which deals in the business of cooking oil and Banaspsti in the month of March 2017, the accused Muhammad Ashraf started partnership in the said company; that in the month of May he started supplying cooking oil and Banaspati. In the meanwhile, Rs.1,48,00,000/ - were outstanding against him. On demand of the same the
accused first lingered on the matter and consequently issued a cheque bearing No. 1631034296 of Muslim Com mercial Bank, Satellite Town, a cheque bearing No.
1631034297 of Rs.600,000/ - and another cheque bearing No. 0646096170. On presentation,
the same were dishonored due to insufficient balance in the account. Hence, the crime report.
3. On completion of usua l investigation, challan of the case was submitted before the
trial court, where a formal charge 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 five wit nesses. 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 however, neither the accused recorded his statement on oath under section 340(2), Cr.P.C., nor produced any
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. Learned counsel for the petitioner contended that the trial court misread the evidence
adduced during the trial and the learned appellate court also failed to consider this aspect of the case; that the two courts below erred in law and on facts while passing the impugned judgments; that the two courts below have not taken into consideration the decisions of the superior courts on the point involved; that the two courts below have failed to consider that there are material contradictions in the evidence of pros ecution witnesses. He prayed for
setting aside of the impugned judgments.
6. In rebuttal, the learned counsel appearing on behalf of the complainant and learned
DPG appearing for the State contended that the impugned judgments are well -reasoned and
in acco rdance with the law. They submitted that prosecution witnesses have fully implicated
the accused with the commission of the alleged offence. They supported the judgment passed
by the learned trial Court and prayed for maintaining the same.
7. I have heard the learned counsel for the parties and carefully scanned the material
available on record. 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".
8. 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 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 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 ot hers, especially creditors and lien
holders. Similarly, the word "dishonor", 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 fulfillment of
an obligation just to disgrace or put him in a state of shame. 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.
9. 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 Bank to ensure the cheque is honored are the remaining requirements. It was held by honorable Supreme Court in criminal petition "Allah Ditta v. The State", reported in 2013 SCMR 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. were
determined by the honorable Supreme Court while deciding 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 arrangement s 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."
10. On basis of the guiding principles as determined the instant case has to be assessed to
arrive to a correct decision.
11. The entire case is based on the testimony of the complainant/PW 1 being star witness
of the case. He stated in his statement that in the month of March 2017, the accused started
partnership with Abdul Shakoor Trading Company and was doing business with him of Rs.30000000/ -. In the meanwhile Rs. 14800000/ - was outstanding against him. On demand
of the same, the accused first lingered on the matter but consequently issued a cheque bearing No. 1631034296 of Muslim Commercial Bank, Satellite Town, a cheque bearing No. 1631034297 of Rs.600,000/ - and another cheque bearing No. 0646096170 of Rs.2000000/ -.
On presentation, the same were dishonored due to insufficient balance in the account and
lastly in March 2018, the complainant filed an application for registration of the FIR.
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 business partnership, which is the basic document to establish the relationship between the complainant and accused/petitioner. It has been observed that the statement of
PW-1 is silent with regard to place where such transaction took place. Furthermore he has
failed to produce a single document to establish the existence of any partnership allegedly carried out between him and the accused. PW- 1 has also failed to give the full particulars of
the said partnership. 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 prima -facie 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 compla inant 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.
13. The complainant/PW- 1 stated during cross -examination that "he himself filled the
cheque on the instance of the accused", meaning thereby that the cheque was filled/written
by the complainant himself and he also mentioned the amount in the said cheque. This fact
proves that the petitioner did not issue the cheque willfully and intentionally. Similarly PW -3
the representative of the bank stated during cross -examination that there was cutting on the
cheque of Rs.600000/ -. This aspect of the matter casts seriou s doubt in the prosecution case
which was not considered by the trial court as well as appellate court.
14. The other important aspect of the matter is that the alleged cheques were issued on
18.08.2017, and 28.9.2017, but the application for registration of the FIR was submitted on
17.03.2018 and FIR was lodged on 26.08.2018 with delay of six months without any explanation. However, PW -1 stated during cross -examination that the application for
registration of the FIR was written by Noor -ud-Din, Advocate in his office on 17.03.2018,
meaning thereby that the complainant lodged the FIR after deliberation and consultation, which creates serious doubt in the prosecution case.
15. The complainant stated in his report as well as in his statement before the court t hat
he was manager of Abdul Shakoor Trading Company meaning thereby that he was not the owner of the said company. In such view of the fact, the question arises that in what capacity the accused has given the cheques to him. More so, the prosecution neithe r cited the owner of
Abdul Shakoor Trading Company as well as his brother namely Abdul Ghafoor as witnesses in the challan nor produced them before the trial court. In order to establish the version put forth by the complainant, the presence of such import ant witnesses would have further
strengthened the prosecution version. Non- production of such important witnesses, 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 witnesses had been produced they would not have supported the prosecution version.
16. This court while exercising the revisional juris diction in terms of section 435, Cr.P.C.
has to examine the record for the purpose of satisfying its conscience to check the correctness, legality or propriety of any findings/sentence or order recorded or passed by the lower courts, therefore, the duty ca sted upon the High Court on its revisional side compels it
to reappraise the entire evidence on the touchstone of principles of fair trial as referred in Article 10 -A of the Constitution of the Islamic Republic of Pakistan 1973. If the first
appellate cour t in disposing of the appeal did not discuss the evidence at all.
In view of above discussion, by extending the benefit of doubt to the petitioner,
judgment dated 10.03.2020 passed by learned Additional Sessions Judge -IX Quetta in
Criminal Appeal No. 01/2 020 as well as judgment dated 25th February 2020 passed by the
learned Judicial Magistrate- I Quetta in criminal P.P.C. Case No. 66/2018 are hereby set
aside. The petitioner is acquitted of the charge under section 489- F, P.P.C. in FIR No.
50/2018 Police St ation City Quetta. He is ordered to be released forthwith if not required in
any other case.
JK/106/Bal. Bail granted.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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