P L D 2013 Sindh 488 (PLP)

SAJJAD ALI SHAH, J.

Through instant petition the petitioners seek quashment of proceedings emanating from Crime No.206 of 2012 registered on 6-10-2012 at Police Station Mithadar under section 489-F/34, P.P.C. It is contended that the petitioners being the directors of Messrs F.D.M. (Private) Limited, a distribution agency, were appointed by the respondent No.4. Messrs IFFCO Pakistan (Pvt.) Ltd. to sell, market and distribute their products. It is the case of the petitioners that during their agreement with the respondent No.4, they performed their duties as distributor honestly and uprightly and sold the petitioners' goods on credit to various shopkeepers, recovered the amount therefrom and remitted the same to the respondent No.4 and during a short period of 9 months the petitioners after collecting the amount from retailers remitted a sum of Rs.600 Million to the respondent No.4. It is contended that the management of respondent No.4 pressurized the petitioners to increase the sale regardless of the risk underlying sale on credit to the retailers and consequently the petitioners in order to enhance sale supplied the goods to the retailers beyond their credit limit. It is further contended that the petitioners during such agency at the instance of respondent issued certain cheques subject to final accounting with the clear written understanding that such cheques would not be presented to bank for encashment without written consent, of the petitioners. Per counsel the respondent No.4 in order to further enhance their sale without intimating the petitioners appointed another distributor which gave rise to a dispute and the respondent insteads of pursuing their remedy in terms of the agreement by referring the matter to arbitration presented two cheques out of 10 cheques, got it dishonoured, notwithstanding, pending recovery proceedings, lodged the F.I.R. It is contended by the learned counsel that since there was no mense rea while issuing the cheques as the same were issued with clear understanding that they will not be presented unless consent in writing is obtained from the petitioners therefore, neither there is any dishonesty on the part of the petitioners nor the ingredients of section 489-F, P.P.C. are attracted and therefore, the F.I.R. being mala fide to compel the petitioners to pay amount without a proper adjudication and misuse of authority consequently be quashed. In order to plead that this being the right case where proceedings are to be quashed, counsel has placed reliance on the judgment of the apex Court in the case of Miraj Khan v. Gul Ahmed and others (2000 SCMR 122). On the other hand learned counsel appearing for the respondent No.4 contends that a huge amount was outstanding against the petitioners and the petitioners in order to liquidate their liability had issued the cheques and the writing on the back side of the cheques was without the consent and knowledge of the respondent No.4, therefore, would not effect the negotiability of the cheques and therefore, the respondent No.4 was well within his rights to lodge the F.I.R. It is further contended that notwithstanding, pendency of the recovery proceedings the respondent No.4 has all the rights to lodge an F.I.R. being an independent remedy. It was lastly contended that since more than one alternate remedy is available with the petitioners, therefore, the interference in the investigation or the quashment of proceedings are not desirable. In support of his contention counsel has placed reliance on the judgment of the apex Court in the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), Haji Sardar_Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192) and Rana Shahid Ahmad Khan v. Tanveer Ahmed and others (2011 SCMR 1937). We have heard the learned counsel for the respective parties and have perused the record as well as case-law cited at bar. In the instant case, issuance of ten cheques by the petitioners has not been disputed nor the fact that the petitioners under an agreement were appointed Distributor of their goods by the respondent No.4. It is also an admitted position that the petitioners were allowed to distribute the goods of the respondent No.4 to a certain limit/extent on credit within the limits of Karachi and Islamabad. It is the case of the petitioner that since the distribution agreement was terminated all of a sudden, therefore, they were not in a position to collect the entire credit facility from the retailers, but the respondents have denied such claim. However, the admitted position appears to be that the distribution agreement contained an arbitration clause. Per petitioner, the cheques were given as security with a clog on their negotiability, whereas the claim of respondents is that the cheques were issued against the delivery of the product and the clog was without their knowledge or consent. Be that as it may, but the photocopy of every cheque which was placed on record contains the following endorsement at the back side of the cheque. "Undated cheque is being forwarded to IFFCO as it is mutually agreed that IFFCO would not present this to any bank without the written consent of Messrs FDM (Private) Limited". At the end of the above reproduced endorsement, available on the photocopies of the cheques, Director of the respondent No.4 had signed and, therefore, we asked the counsel for the respondents to satisfy as to whether an instrument with such an agreement still can be termed as negotiable instrument. Counsel for the respondents initially tried to deny writing on the backside of the cheque and consequently we asked SHO to explain as to whether the instrument contained such writing. SHO on 29-11-2012 stated before us that original of the cheques were never produced before him, therefore, could not make a positive statement. However, the Investigating Officer of the case on the same day stated that such endorsement was available on the backside of the cheque, therefore, he did not cause arrest. We consequently directed the Investigating Officer as well as respondents to produce all the original cheques. Today respondent No.4 has produced eight cheques whereas Investigating Officer has produced two cheques and we find that all the cheques in original contain the statement/endorsement reproduced above at their back but did not contain the signature of respondent No.4. The cheques after having examined were returned. The anomaly was resolved as the respondent admitted that when cheques containing such endorsement were delivered to the respondent No.4, the director of respondent No. 4 while acknowledging receipt of said cheques signed on the photocopy on both sides of the cheque and therefore, the photocopies contain signature of respondent No.4's representative just beneath the writing/endorsement reproduced above. In our opinion, the basic ingredients of Section 489-F, is the "dishonest issuance of a cheque" towards repayment of a loan or fulfillment of an obligation, which is dishonoured on presentation as has been held by the Supreme Court in the case of Mian Allah Ditta v. The State (2013 SCMR 51). The question consequently arises as to whether an undated cheque handed over even towards repayment of loan or fulfillment of an obligation with the condition that it should not be presented without written consent of the drawer can be termed as dishonest issuance" and its dishonour could give rise to initiation of criminal proceedings under the provisions of section 489-F, P.P.C. In our opinion words "dishonest issuance" in section 489-F are of significance and reflects the state where the drawer has issued cheque directing payment of the amount mentioned therein knowingly that he has no funds and on presentation the cheque would be dishonoured. Whereas in the instant case, the drawer has placed an embargo on presentation of cheque without his written consent meaning thereby that issuance of cheque would take place only when such written consent is obtained from the drawer, failing in our opinion it would remain at the most an acknowledgment of liability. In the circumstances without dilating upon the negotiability of the cheques as it might effect the rights of the parties pending before the Court of Original Jurisdiction, we are of the clear view that since undated cheques were admittedly issued by petitioner on different dates as it appears from the serial numbers of the cheques with the condition that it should not be presented without written consent of the drawer which condition was accepted by the respondent No.4 holder without any objection therefore, presentation of such cheque without obtaining written consent was totally unauthorized and would not bring such presentation within the mischief of "dishonest issuance", as the cheques presented for the payment by the respondents were not issued by the petitioner for payment. Coming to the various judgments cited by the learned counsel to contend that since more than one alternate remedies are available to the petitioner, therefore, the proceedings may not be quashed. We are fully conscious of the fact that powers to quash the proceedings in criminal cases is to be exercised sparingly and that too in extraordinary cases where the Court is convinced that the prosecution is mala fide and/or motivated or that the trial of a person is nothing but a farce and abuse of the process. The criteria laid down by the Supreme Court for exercising such power could be derived from the case of Rana Shahid Ahmed Khan v. Tanveer Ahmed (2011 SCMR 1937) which appears to be that "in case allegations levelled in the F.I.R. or complaint are un-rebutted despite no criminal case could be made out then the High Court while exercising its inherent jurisdiction could quash the proceedings emanating from a crime". In this case, since we have already come to the conclusion that the complainant/respondent in breach of a condition on the basis of which the cheques were handed over to him i.e. without obtaining written authority from the petitioner presented the cheques which without such authority were never meant for payment, therefore, the basic ingredients of section 489-F, P.P.C. i.e. "dishonest issuance" is missing and there could be no successful prosecution even the allegation in the F.I.R. are un-rebutted and, therefore, the proceedings would be nothing but an abuse of the process of the Court. In view of what has been discussed above, the proceedings emanating from Crime No.206 of 2012 under section 489-F/34, P.P.C. registered at Police Station Mithadar are hereby quashed. MWA/M-58/K Petition allowed.