P L D 1963 (W (PLP)

3. The case of the applicant was that he was a contractor and as such he had dealings with Hashim Yousif Timber Mart Walla from whom he had purchased a wagon load of timber valued at Rs. 10,

500. As he already owed Hashim Rs. 521 he issued a cheque for Rs. 11,021 in favour of Hashim but as this timber which the applicant had supplied to the M. E. S. was found by the latter to be bad they withheld payment to the applicant who in consequence could not make payment of Rs. 11,021 to P. W. Hashim. This Hashim had intimate business relations with the complainant and then owed him a sum of Rs. 16,

000. As his money was held up by the applicant, Hashim could not discharge this debt to the complainant and informed him about his peculiar position in this matter. The complainant then endeavoured to meet the applicant and also made enquiries about the various contracts the applicant had at Manora, Malir Cantonment and Drigh Road. The complainant thus having assured himself that the applicant was a substantial party he accepted a cheque from him for Rs. 11,000 being cheque No. BBK‑384736 and drawn by the applicant on the Habib Bank Limited, Jodia Bazar, in favour of Haji Sultan Bux Karim Bux Paracha, Timber Merchants, Karachi. This cheque is Exh. D‑1/A and its counterfoil is Exh. D‑1/C. On the reverse of this counterfoil there appears the signature of the complainant Dilawar Shah and date 10‑12‑1959. This cheque was in respect of the original Rs. 11,000 due to P. W. Hashim by the applicant. On the same day 10=12‑1959 the applicant also entered into an agreement with the complainant's firm in these words :‑ "I, Saeeduddin Ahmed Qureshi, resident of Lasbella, House, Karachi, have given one cbeque No. BBK‑384736 for Rs. 11,000 (rupees eleven thousand) only, to be drawn on Habib Bank, Jodia Bazar, to Haji Sultan Bakhsh Karim Bakhsh, Paracha, Timber Merchant, Karachi. The cheque should be encashed from the Bank on the date mentioned on it. In case the cheque returns uncashed on the date then I shall pay the amount in cash." This agreement is Exh. D‑1 /B. The applicant added that the transactions between himself and the complainant were purely of a civil nature and that there was at no time any question of entrustment of complainant's moneys to him or of his mis appropriating these moneys.

4. The trial Magistrate who has conducted this case with care and patience recorded the evidence of eight prosecution witnesses, the first of them being the complainant Kazi Dilawar Shah. In his examination‑in chief this' witness repeated the prosecution story as contained in his F. I. R. but it is in his cross‑examination that he has made divergent and contradictory statements. At first he emphatically denied that the applicant had given him a cheque on 10‑12‑1959. He added that he did not remember whether the applicant had given him any written promise on 10‑12‑1959. The complainant was then confronted by the learned Advocate appearing on behalf of the applicant with the cheque Exh. D‑1/A and he was forced to admit that this cheque had been given to him by the applicant on that day though according to him later the applicant had taken it back. The complainant was then confronted with the written agreement Exh. D‑1/B referred to above, and at first he said that he could not exactly remember if this written agreement had been given to him by the applicant, but, then, modified his statement by saying that it was quite possible that he might have been given this written promise by the applicant. It is significant that this written agreement appeared on the letter‑head of the com plainant's Firm. The complainant was then confronted with the counterfoil of the cheque Exh. D‑1/A and his signature on the reverse of it with the date 10‑12‑1959 in his own hand writing. The complainant then realizing that the time had come for him to speak the truth meekly admitted that Exh. D‑1/C was the counterfoil of the cheque Exh. D‑1/A and that it bore his signature and was also dated by him. He further admitted that his previous statement that he had not received any cheque from the applicant on 10‑12‑1959 was false and untrue. Cheque Exh. D‑1/A had been received by him from the applicant on 10‑12‑1959 as also the written promise Exh. D‑l/B. The complainant then added that the applicant had given him three subsequent cheques all post-dated and each accompanied by a written promise to pay the money in cash.

5. The trial Magistrate has in like manner recorded the evidence of each of the other seven prosecution witnesses and in the course of his twenty‑one paged judgment he has carefully appreciated and assessed this evidence. In the final analysis he has reached the conclusion that no criminal charge had been made out against the applicant and he therefore discharged him under section 2530) Cr. P. C. But, this careful and considered order of the trial Magistrate was set aside by the A. D. M., Karachi, in a very brief order of barely two pages. In this order the learned A. D. M. has framed two fresh issues and he has proceeded as it were to re‑assess the evidence thereby reaching a conclusion contrary to that of the trial Magistrate. The learned A. D. M. appears to be obsessed by the thought that the last post‑dated cheque given by the applicant/accused was dishonoured by the Bank.

6. My attention has been invited to certain reported cases which are material for the purpose of disposing of this revision application. The first of these is a case reported in M. M. S. T. Chidambaram Chettfar v. Shanmugham Pillai (A I R 1938 Mad. 129). It was there held that‑ "A post‑dated cheque in payment of goods already received is a mere promise to pay on a future date and a broken promise is not a criminal offence, though it may amount in certain business relations to discreditable behaviour." But quite apart from this ruling it is a well established principle of the Criminal Law that the mere fact that a cheque bounces is not sufficient for the purpose of establishing a charge of cheating. It must further be shown that the drawer of that cheque knew at the time that he drew it that there would be insufficient money to his credit in his Bank account on the day of encashment.

7. The second case referred to is Azizuddin v. Emperor (A I R 1939 Sind 71). In this case a Bench of the former Chief Court of Sind composed of Davis, C. J., and Weston, J., held that‑ "A Sessions Judge should not usurp the jurisdiction con ferred by law upon a Magistrate and should not interfere with a careful and fairly proper order of a Magistrate merely because the Sessions Judge takes a different view upon the evidence from that of the trying Magistrate, when the view taken by the Magistrate is reasonable in all circumstances of the case." Two more cases reported in Sheikh Muhammad Amin v. The Superintendent of Police, Jhang (P L D 1960 Lah. 684) and Mst. Saeeda Begum v. The State (P L D 1960 Lah. 1005) were referred to in which the principle has been reiterated that an order of discharge under section 253, Cr. P. C. can only be set aside if after examining the reasons for the discharge the Court is satisfied that they were not sound or that the finding was perverse or foolish.

7. Having been taken through the very lengthy judgment of the trial Court and having carefully considered the reasoning in this judgment I am not prepared to hold that this reasoning is unsound or that the final decision reached was perverse or foolish. I, therefore, allow this revision application and set aside the order of the City and A. D. M. dated 16‑3‑1961. K.B.A. Petition accepted.