2017 P Cr.

L J 1305

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

MEHMOOD KHAN---Appellant

Versus

SOHAIL KHAN and another---Respondents

Criminal Acquittal Appeal No. 143 of 2015, decided on 29th March, 2017.

(a) Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Ingredients---Dishonest intent was the basic

requirement to constitute an offence under S.489-F, Penal Code, 1860---Purpose of issuance of
cheque must be either repayment of a loan or fulfilment of an obligation, and arrangement with
Bank to ensure that the cheque would be honoured were the remaining requirements.

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---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing cheques-

--Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused
issued two cheques worth Rs. 4,00,000 and 6,00,000 respectively but were dishonoured when
presented to the Bank, for insufficient funds---Complainant during cross-examination stated that
there was some compromise between the parties in another case and accused had paid him an
amount of Rs. 1,00,000 out of Rs. 3,00,000 as agreed---Said fact was not mentioned in the FIR---
Witness who described his status as mediator, stated that he arranged settlement of the dispute of
the parties and it was decided that accused would pay an amount of Rs.10,00,000---Accused
issued two cheques, which were deposited in his account as the complainant had no bank
account---Settlement was in writing---Statement of witness was in total negation of the statement
of complainant, which lessened the credibility of the both---Investigating Officer had negated the
statement of witness---Prosecution failed to meet the requirements of constituting an offence---
Dishonest intent on part of the accused was missing---Issuance of cheques though asserted and
not denied, but the purpose for its issuance was neither to repay a loan or to fulfil an obligation,
to bring it within the ambit of "offence"---Settlement deed stated a new story, which was
contrary to the statement of complainant and his witness, thus un-reliable and not worthy of
consideration---Circum-stances established that complainant failed to point out any illegality in
the judgment passed by the Trial Court, or the instances whereby the available material was mis-
appreciated or not appreciated---Appeal against acquittal was therefore, dismissed.
 Qari Rehmatullah for Appellant.

Nemo for Respondents.

Date of hearing: 7th December, 2016.

ORDER

MRS. SYEDA TAHIRA SAFDAR, J.---The order dated 20th April 2015 of Judicial
Magistrate-IX, Quetta, whereby respondent No. 1 Sohail Khan was acquitted of the charge for
the offence punishable under section 489-F, Pakistan Penal Code (P.P.C.) for want of evidence,
was assailed in the instant appeal. The petitioner Mahmood Khan questioned validity of the order
on the grounds that the evidence was either not read or misread, and the facts were
misappreciated, that issuance of the cheque though an admitted feature of the case, but was
overlooked, that the mala fides and dishonesty on part of the accused (respondent No. 1) in
issuance of the cheques was established, but ignored.

2. The learned counsel for the appellant made his submissions, in detail. In repetition to the
contents of the appeal it was stated that issuance of the cheques was not denied by the accused
(respondent No.1), thus the burden of proof was on him (respondent No. 1) to show his bona
fides as required, but failed, that the trial court was not justified to record acquittal in his favour
despite admission of the act.

3. The material on the record reveals that FIR No. 279 of 2013 Police Station City, Quetta
was registered on 29th December, 2013 on the report of Mahmood Khan (present appellant),
with the contents that two cheques worth Rs. 400,000 (Rupees four hundred thousand) and
Rs.600,000 (Rupees six hundred thousand) respectively were issued by respondent No. 1, but
dishonoured when presented in the bank, for want of sufficient balance. The respondent No. 1
was charged for the offence punishable under section 489-F, P.P.C., but he was with a plea of not
guilty. It was apparent from the record that during course of evidence the cheques, and the
Return Memo issued by the bank, with the reasons insufficient funds and inactive account, were
produced and marked as Articles, established the act of dishonoured of the cheques on
presentation, but this act turns into an offence if done with a dishonest intention. The section
489-F, P.P.C. reads as under:

"489-F. Dishonestly issuing a cheque: Whoever dishonestly issues a cheque towards

repayment of a loan or fulfillment of an obligation which is dishonoured on presentation,
shall be punished 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."

4. 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 be honoured are the remaining requirements. It was held by honourable Supreme Court
in 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. were determined
by the honourable 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 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."

5. On basis of the guiding principles as determined the instant case has to be assessed to
arrive to a correct decision. The appellant (complainant Mahmood Khan) apart from his written
report appeared as Prosecution Witness No. 1 (PW-1) with the statement that in response to
burning of his shops the respondent No. 1 issued two cheques worth Rs.400,000/- and Rs.
600,000/ respectively in his favour, but when presented to the Bank, were dishonoured for the
reason of insufficient amount. During course of cross-examination he admitted that there was
some compromise between him and respondent No. 1 in some other case, and respondent No. 1
paid him an amount of Rs. 100,000/ Rupees one hundred thousand), out of Rs. 300,000/-.
(Rupees three hundred thousand) as agreed. There was no mention of the facts in the FIR. PW-4
Noor Muhammad described his status as of mediator, as the appellant and respondent No. 1
approached him for settlement of their dispute. It was his statement that according to the decision
the respondent No. 1 was bound to pay an amount of Rs. 1,000,000/- (Rupees one million), thus
issued two cheques of Rs. 600,000/- and Rs. 400,000/- respectively. Further stated that the
appellant handed over the cheques to him (PW-4) for the purpose of encashment; it was for the
reasons that there was no bank account of the appellant. Thus he (witness) deposited the cheques
in his own account at Soneri Bank, Hazar Ganji Branch, Quetta, which were dishonoured. He
stated about execution of a settlement deed in writing. The statement of PW-4 was in total
negation of the statement of the complainant (present appellant), thus lessened the credibility of
the both. The remaining witnesses were formal. The Investigating Officer during cross-
examination stated that the cheques were deposited in the account of the appellant. This further
negated the statement of PW-4.

6. The evidence unable to meet the requirement to constitute an offence or to meet the
criteria as determined by the honourable Supreme Court. The dishonest intent on part of the
respondent No. 1 (accused) found missing. In addition the issuance of cheques though asserted
and not denied, but the purpose for its issuance was neither to repay a loan or to fulfill an
obligation, to bring it within the ambit of the offence. The contents of Iqrar Nama, allegedly
written between the parties, available on the record stated a new story not only contrary to the
statement of the appellant, but also of Noor Muhammad (PW-4) the mediator, thus un-reliable
and worth no consideration.

The trial court properly assessed the material on the record, and with proper appreciation
of the evidence and the law arrived to a correct decision, thus need not to be interfered. In
addition the appellant failed to point out any illegality in the impugned judgment, or the
instances whereby the available material was misappreciated or not appreciated, thus failed to
make out a case. For the reasons the appeal is dismissed in limine.

JK/36/Bal. Appeal dismissed.