2013 P Cr (PLP)

??????????? 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 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 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. MWA/87/Q???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.