1968 P Cr (PLP)

Dates of hearing: 18th and 19th September 1967. Facts giving rise to the present application in revision under section 435/439 read with. section 561 (a), Cr. P. C. are stated with great clarity in the judgments of the two Courts below.

1. Admitted facts are that at the instance of complainant Haji Muhammad) a cloth dealer) P. W. Ghulam Muhammad Chhuttani (a broker) secured the present applicant (All Hussain) as a Customer to purchase his German Nylon pieces, after he was shown sample pieces on 7‑5‑1962, On the following day the broker took Haji Habib (the brother of complainant Haji Muhammad) to the applicant's office where the transaction was completed at the rate of Rs. 5, per yard. On 9‑5‑1962, both these persons took the cloth purchased by the applicant and handed over it to him. He issued a cheque for Rs. 13,045, on the understanding that it would not be cashed, as the purchase money would be paid in cash on the following day. Accordingly on the next day, viz. 10‑5‑1962, all these three persons went to the office of the applicant who pretended that he was expecting money from his other office with the result that they waited there and ultimately wrote two receipts which were not signed by the complainant. As no money arrived the applicant asked them to come on the next day. When they visited his office on 11‑5‑1962 it was found closed. On the next day complainant Haji Muhammad presented the cheque but it was dishonoured for the reasons, namely, (i) that there was no amount in the bank, (ii) that the applicant's signature was different, and (iii) that this cheque was to be signed by the applicant along with two Directors. In view of this position the complainant approached Preedy Street Police Station but his report was not recorded. Consequently he sent one written application to Deputy Superintendent, Police, on 18‑5‑1962 and after the completion of necessary enquiries the applicant was challaned.

2. The applicant Ali Hussain had pleaded not guilty‑and had denied to have committed this offence. This transaction was admitted by him. His version was that as no cash was available with him he issued a cheque on the understanding that the complainant would obtain the signatures of the two Directors and would not present it unless these signatures were obtained, In the alternative it was suggested that he should come on the next day, when the purchase money in cash would be paid. When the complainant approached him he was paid the purchase money in cash and the two receipts Exhs. D/2‑3 were executed by him. When this cloth was given to the tailor for stitching it was found that it was short in length and was torn at some places. Consequently he sent telegrams and notices to the complainant and when he paid no heed to it he approached the Police who refused to take action in the matter. There after the filed the complaint directly in the Court but it was dismissed summarily. 4 witnesses were examined by him in defence.

3. The learned Additional City Magistrate, Karachi (Court No. 9) had accepted the prosecution evidence, disbelieved the applicant and the evidence adduced by him and had convicted him under section 420, P. P. C. and sentenced him to undergo R I. for a period of two years and also to pay a fine of Rs. 1,000, or in default to undergo further R. I. for a period of six months. The 1st Appellate Court has dismissed his appeal and confirmed the conviction and sentence pasted against him.

4. Mr. Muhammad Hayat Junejo the learned counsel for the applicant had urged the following two points before me. (i) Whether the cheque was meant not to be cashed? (ii) Whether the two receipts mentioned above were obtained fraudulently by the applicant? Relying upon a case reported in P L D 1967 S C 334, he had urged before me that the rule with regard to non‑interference when there are concurrent findings of facts by the two Courts below did not apply to criminal cases. I have no dispute with this principle. The second point urged before me can be disposed of on short ground that it was not correct that the two Courts below had held that the applicant had obtained these two, receipts fraudulently. The charge appears at page 91 of the Paper Book and it clearly recites that the applicant had cheated the complainant Haji Muhammad by dishonestly inducing him to deliver 2609 yards of German Nylon cloth valued at Rs. 13,045, and had issued a. cheque. Even if there is some substance in this plea and it is accepted it would result into re -trial of the applicant. I, therefore, find very little substance in this plea and accordingly reject the same.

5. On merits it is evident from the facts stated above that the transaction through Ghulam Muhammad Chhuttani Broker is not denied by the applicant. He has admitted delivery of the cloth purchased by him as a result of this transaction. Further admitted position is that the applicant had issued one cheque, as he had no cash available with him on that day on the under standing that complainant would not present it. As agreed between the parties the applicant was approached on the follow ing day for the amount in cash and he pretended that he was expecting money. When it did not arrive he obtained two receipts Exhs. D/2 and D/3 from the complainant's brother but these were not signed by him as the purchase money was not given. Version of the applicant is that these two receipts were passed after he had paid the amount in cash. This story has been disbelieved by both the Courts below and for very good reasons. There is nothing on record to suggest as to from where he got this money. He has not examined any person to support him that he had brought the cash on 10‑5‑1962. If he had really paid the purchase money it is not explained by him why he did not get back the cheque from the complainant party. Prosecu tion has added that when he failed to pay the money on 10th May 1962 till late in the evening they were asked to come on the next day. Applicant was approached on 1Ith May. 1962 but it was found that his office was closed. Consequently presented the cheque on 12‑5‑1962 but it was dishonoured. Evidence of P. W. 5 Bilawal of the Habib Bank shows that this cheque was dishonoured because there was no sufficient money, (it) that the signature of the .applicant appeared to be different and lastly (iii) that the cheque was not signed by the two Directors, as this account was to be operated by two Directors along with Chairman. In view of this position the complainant approached the Preedy Street Police Station but no action was taken by it. He therefore addressed the application to Dy. Superinten dent, Police and on its basis the action was taken. Apparently applicant has failed to prove that these two receipts were passed by complainant's brother after he was paid the purchase money. Admittedly the receipt does not bear the signature of Habib and his explanation is that he had refused to sign because no money was paid to him. They were kept in hopes by the applicant till late in the evening but no money arrived and in the mean time he had asked them to execute these two receipts assuring them that he would receive the money. For the reasons stated above I agree with the prosecution and hold that applicant has failed to prove his case. Ashraf who was examined in defence was not mentioned by the applicant that he was present at the relevant time. Three persons whose names were mentioned by the applicant stating that they were present when he had paid the amount in cash have .not been examined. On the considera tion of all this evidence and the circumstances referred to above both the Courts had rightly come to the conclusion that applicant had failed to prove his version regarding payment of purchase money in cash. There are circumstances which clearly prove that from the very start the applicant had no intention to pay this amount and defraud the complainant party. When he knew that the account could not be operated and cheque be accepted when it is not signed by the Chairman and two Directors, he should have explained this fact to the complainant party. He also knew as it is evident' from the evidence of Bank employee that at no time he had such amount available in the bank. He got the two documents by pretending that lie was expecting money. His plea that the cloth was short in length and was also damaged is also false, If he had really sold this cloth he should have examined the purchaser of that cloth. In order to create defence he approached the Police and when no action was taken he filed a direct complaint which was dismissed by the Magistrate. He had failed to prove that he had means to pay the purchase money. All these factors show that he had no intention to pay purchase price. This conduct of the applicant clearly proves that he wanted to cheat the complainant party. For ail these reasons I find no ground to differ from the findings given by the trial Court. Application is accordingly dismissed. The conviction and sentence passed against the applicant Ali Hussain are therefore confirmed. No case is made out for reduction of sentence. Applicant Ali Hussain is on bail his bail bonds are cancelled. Warrant for his arrest to issue and he should be remanded to custody to undergo the remaining period of his sentence. Petition dismissed.