Trile 489-F ppc
From Accused for Acquittal
2013 P Cr. L J 175
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
NASEEB GUL---Appellant
Versus
AMIR JAN and another---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 offence 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,
unless 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 and 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 repayment
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
accused 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 same, 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 transaction 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 dismissed
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 Court 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 acquitted 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
conclusion. 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, but the Sessions Judge by mis-exercise of the
jurisdiction has come to a wrong conclusion, therefore, the order impugned
amounts to misappreciation 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 be 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. Similarly, 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 respondent 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 issue 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 appellant 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 against 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
the 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 respondent 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
present 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 what has been stated and discussed
hereinabove, the appeal is accordingly dismissed in limine.
Appeal Dismissed.
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