2013 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through this Criminal Revision Application filed under section 439, Cr.P.C. the applicant has impugned the Judgment dated 22-5-2012 passed by IIIrd Additional Sessions Judge, Karachi South in Criminal Appeal No.19 of 2012 as well as the Judgment dated 15-3-2012 passed by VIth Civil Judge and Judicial Magistrate, Karachi South in Criminal Case No.1135 of 2011 whereby he convicted and sentenced applicant Farooq Shah to suffer R.I. for a period of 2-1/2 years and pay compensation of Rs.50,000 to the complainant in default whereof to suffer S.I. for six months. The applicant was, however, extended benefit of section 382-B, Cr.P.C. Precisely, the prosecution case is that accused Farooq Shah and Salem along with absconding co-accused induced the complainant to pay Rs.69,20,670 on the pretext of purchasing the old papers which he paid, however, in turn the accused did not supply the consignment and kept him on false hopes. However, on the repeated demands of the complainant the appellant dishonestly gave 6 cheques to the complainant which on presentation at the concerned bank were bounced/dishonoured due to insufficient balance. After usual investigation challan was submitted against the accused. A formal charge was framed against the accused as Exh.3 to which they pleaded not guilty and claimed to be tried. In support of its case prosecution examined six witnesses, thereafter prosecution side was closed. Statement of the accused was recorded and appellant also examined himself in his defence. After recording of evidence and hearing learned counsel for the parties, the Judicial Magistrate convicted and sentenced the appellant as stated above, however, on appeal the substantive sentence was reduced from 2-1/2 years to 2 years while the sentence of fine was maintained, hence this Criminal Revision. Learned counsel for the applicant submitted that the learned Judicial Magistrate misread the evidence adduced during the trial and the learned appellate court also failed to consider this aspect of the case; that the two courts below erred in law and on facts while passing the impugned _judgments; that the two courts below have not taken into consideration the decisions of the superior courts on the point involved; that the two courts below have failed to consider that there are material contradictions in the evidence of prosecution witnesses. He prayed for setting aside of the impugned judgments. In rebuttal, learned A.P.G. appearing for the State contended that the impugned judgments are well-reasoned and in accordance with the law. He submitted that prosecution witnesses have fully implicated the accused with the commission of the alleged offence. He supported the judgment passed by the learned trial Court and prayed for maintaining the same. I have heard the arguments advanced by the learned counsel for the appellant as well as learned A.P.G. and perused the material available on the record. Before proceeding further, it would be advantageous to reproduce hereunder the relevant provisions of section 489-F, P.P.C. "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." From the reading of above provision of law it appears that for attracting the said provision certain preconditions have to be fulfilled i.e. issuance of cheque, that such issuance of cheque was with dishonest intention; that the purpose of issuance of the cheque should be with the aim to (i) repay a loan or (ii) to fulfill an obligation and lastly that on presentation, the cheque is dishonoured. Of course, there are certain exceptions to the said provision viz. (a) that the accused had made arrangements with his bank to ensure that the cheques would be honoured; and (b) that the bank was at fault in dishonouring the cheque. Now examining the instant case in the light of these guidelines, it seems that during the trial tangible evidence has come on record that cheques in question were issued by the accused/appellant. It is also an admitted position that there was a deal between the parties in consequence whereof the accused either had to supply the old papers as agreed or in case of their failure, which happened in fact in the instant cast to refund the money taken by them. The accused failed to establish that they had made prior arrangements with the concerned bank to honour the cheques in question, nor they have pleaded that the bank was at fault in dishonouring the cheques. In the circumstances, prima facie the fact appears to have been proved that the cheques were issued dishonestly. The appellant in the first instance had taken a plea that he gave the cheques on commission but subsequently he took a somersault and came with a stand that he had given the cheques as a security of the deal/transaction between the parties regarding purchase of old papers. The prosecution witnesses have fully implicated the appellant in the commission of the alleged offence and the defence could not succeed to shatter/shake the evidence adduced by the prosecution witnesses. It is now well-settled that minor discrepancies in the evidence are to be ignored and no importance could be attached thereto. Needless to emphasize that revisional jurisdiction of this Court cannot be used for interrupting or subverting the normal criminal proceedings and unless an order is found tainted with miscarriage of justice, the same cannot be interfered with (See 2000 PCr.LJ 576). For the foregoing reasons, I seen no justification to interfere with the judgment of the appellate court. Consequently Criminal Revision Application is dismissed in limine and the judgment passed by the appellate court is upheld. MWA/F-30/K Revision dismissed.