2011 P Cr (PLP)

SHAHID ANWAR BAJWA, J.

The applicant lodged an F.I.R. at Police Station Ferozeabad on 25-10-2004. It was registered as F.I.R. No. 736 of 2004. It was complained by the present applicant that he entered into a sale agreement with accused Nihaluddin who paid him a sum of Rs.400,000 as consideration for a plot bf land. Accused Nihaluddin sold the plot to some other person and when payment was demanded by the complainant, accused Nihaluddin issued cheque No.019143 of Faisal Bank Ltd., Shaheed-e-Millar Branch, Karachi. When the cheque was presented to the bank on 9-10-2004 the cheque was dishonoured on the ground there was no sufficient funds. It was alleged in the complaint that when the complainant informed the accused about dishonouring of the cheque the accused kept on avoiding it and refused to pay the same. After registration of F.I.R. Challan was presented on 1-11-2004. Eventually the case sent up for trial: Evidence of complainant present applicant was recorded. Thereafter application under section 249-A, Cr.P.C. was filed which application was allowed and the accused was acquitted vide order dated 25-5-2009.

2. Being aggrieved by acquittal, this revision application under sections 439-A/435, Cr.P.C. was filed. When this application came up for hearing on 10-7-2009, learned counsel for the applicant sought time because he wanted to file application for amendment of memo. of revision. Consequently M.A. No. 2851 of 2009 was filed in which it was prayed that this revision may be converted into an appeal against acquittal. This application came up for orders on 24-7-2009 and it was adjourned at the request of Advocate for the applicant. The application was granted on 28-8-2009. It was also ordered that Nihaluddin may also be made a party. Amended title was consequently filed.

3. As a preliminary objection learned A.P.-G. stated that order passed by the Court below was an appealable order' under section 417(2-A). Therefore, revision was not maintainable. However when it was pointed out that revision has already been converted into an appeal and it was filed within 28 days of the order the learned A.P.-G. did not press his objection.

4. Learned counsel for the applicant after reiterating contents of the F.I.R. submitted that the cheque was issued and cheque had been dishonoured. According to the learned counsel this is sufficient ground for ultimately going for conviction of the accused. However learned Court below has without giving due regard to this aspect acquitted the. accused under section 249-A, Cr.P.C. Learned A.P.-G. extensively referred to statement of the complainant and his cross-examination in the Court below to support the order of the learned Court below. He also submitted that the facts of this case, even prima facie, do not make out a case under section 489-F.

5. I have considered submissions made by the learned counsel and have gone through the record. In this examination-in-chief of the complainant stated that on 5-10-2004 accused Nihaluddin issued him a Cheque of Rs. 400,000 in lieu of property and on presentation the cheque was dishonoured. He was cross-examined by Advocate for the accused and in the cross-examination he made amongst other the following statements:-- "It is fact that in my statement under section 154, Cr.P.C. I have not given the reason to which accused issued cheque to me.... The dispute about property having No. C-24, Sector 9-A, Scheme

33. Merath Cooperative Society. ... I approached the accused along with pay order of Rs. 05 lacs as balance amount to which accused refused to receive the said amount by saying that he had already sold that property to another party and requested me that accept the compensation as double of my paid amount i.e. 4 lacs plus 4 lacs and accused gave me 4 lacs cheque another pay order of Rs. 4 lacs which the pay order was enchased and the cheque was bounced for which the present F.I.R. is lodged. ... It is incorrect that I deposed in evidence that accused issued one 4 lacs cheque and probably the pay order was of Rs. 4 lacs fifty thousand. It is correct that one receipt of pay order was also executed. It is incorrect that the pay order of Rs.4 lac fifty thousand was received from Moin Ahmed Khan. I do not know English language but I signed in English. I can understand the name, matter in English."

6. A perusal of the above statements indicates that dispute was in respect of a property. In his statement under section 154, Cr.P.C. complainant had not stated reason for which the cheque had been issued. The complainant further admitted that after the cheque he received a pay order for Rs. 4,50,000 in lieu .of this cheque. Therefore, after having received payment in lieu of the cheque complainant did not have any case to complain.

7. Section 489-F is in the following words:-- "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."

8. A bare perusal of the above indicates that it is not every instance of a cheque being dishonoured which can attract penal consequences of provision of section 489-F, it is only when a cheque is issued towards repayment of a loan or fulfilment of an obligation and if such cheque is dishonoured or presentation attracts that penal consequences envisaged by section 489-F are attracted. In the present case yet the cheque was issued because the accused has received money from the complainant. But also yet the complainant received back not only amount of cheque but Rs. 50,000 over and above. Therefore, there was no repayment of loan and no fulfillment of an obligation any more and therefore, in any case, provisions of section 489-F cannot be attracted to the case against the accused. No ground for interference with the order passed by learned court below has been made out. This Criminal Revision Application is dismissed in limine. Criminal revision application dismissed. H.B.T./M-178/K Petition/appeal dismissed.