2017 PLP 53 (YLRN)

ZAFARULLAH KHAN KHAKWANI, J.

Mst. Farhana Amjad, appellant has approached this Court by way of instant appeal under Section 417(2-A), Cr.P.C. calling in question the order dated 30.9.2014 passed by the learned Magistrate Section-30, Murree Distt. Rawalpindi whereby the said learned Magistrate acquitted the accused-respondent under Section 249-A, Cr.P.C. from the charge in case FIR No. 124 dated 16.4.2013 registered under Section 489-F P.P.C. at Police Station Murree, Distt. Rawalpindi.

2. Learned counsel for the appellant contends that the accused-respondent entered into an agreement with the appellant to sell a house which deal could not be materialized and the respondent issued a cheque towards repayment of the advanced money which on presentation was dishonoured and the above mentioned case was got registered and thus dishonesty of the respondent was more than clear which was to be proved by the appellant through evidence but the learned trial Magistrate did not provide full chance to the appellant to prove her case and acquitted the accused-respondent on the basis of conjecture and surmises. Further submits that if it is presumed for the sake of arguments without conceding that subsequently, the respondent made payment to the complainant/appellant even then commission of a cognizable offence under Section 489-F, P.P.C. was made out and the accused was liable to be punished but the learned trial Magistrate scuttled the proceedings through the impugned order which is liable to be set aside and the accused-respondent deserved to be convicted and sentenced in accordance with law.

3. The prosecution case as discernable from arguments of the learned counsel for the appellant and perusal of impugned order of acquittal, is that the appellant entered into an agreement with the accused-respondent for purchase of a house but the same could not be completed as such the accused-respondent issued cheque No. 05463118 dated 5.11.2012 for an amount of Rs.8,50,000/- in favour of the appellant toward re-payment of advanced money but the said cheque could not be encashed whereupon instant FIR was registered. During proceedings at trial the accused-respondent submitted application under Section 249-A, Cr.P.C. for his acquittal on the grounds that he had entered into a compromise with the complainant/appellant according to which he had paid Rs.5,00,000/- to the complainant in Court and for rest of the amount he had issued cheque No. 16840518 dated 29.5.2013 which was got encashed by the complainant. Although the complainant denied having received any subsequent cheque or getting the same enchased but the learned trial Court observed that according to Ex.PF the complainant had entered into a compromise which was evident from the fact that she had even received Rs.5,00,000/- from the accused in Court on 15.4.2013 and for rest of the amount Cheque No. 16840518 dated 29.5.2013 was issued in her favour, so the offence stood compounded and as such accepted the petition and acquitted the respondent.

4. It appears that the appellant has hotch potched the facts of the case. As per complainant/appellant's own stance she was given cheque No. 05463118 dated 5.11.2012 for Rs.8,50,000/- towards repayment of her amount advanced to the respondent. The said cheque was not encashed whereupon FIR No. 124 dated 16.4.2013 (subject matter of the present appeal) was registered under Section 489-F, P.P.C. Proceedings in the said FIR were in progress when the complainant entered into a compromise with the respondent vide Ex.PF (as is evident from the impugned order and even from contents of Para No.3 of the memorandum of appeal that she received Rs.5,00,000/- from the accused on 15.4.2013 before the Court and rest of the amount was to be paid by the respondent to the appellant on 15.6.2013). Once she had entered into a compromise, the respondent was entitled to be acquitted as the offence under Section 489-F P.P.C. is compoundable. Although it is claim of the appellant that neither any subsequent cheque towards repayment of balance amount was issued to her nor she got encashed the same but if this stance of the appellant is admitted as correct, even then the respondent cannot be punished in this case because the complainant has already entered into a compromise with the respondent with regard to the dispute relating to the issuance of cheque No. 05463118 dated 5.11.2012 regarding which the FIR No. 124/2013 was got registered.

5. It may be mentioned here that although the respondent claims that he had made payment of remaining amount through cheque No. 16840518 dated 29.5.2013 which was got encashed by the complainant herself and this fact was verified by Muhammad Javaid Officer of the concerned bank who appeared in court along with record and even copy of her I.D. card was available on record of the bank which was obtained from her at the time of encashment of subsequent cheque but this fact is denied by the complainant/appellant. However, in this appeal one cannot and should not sit to decide as to whether subsequent cheque bearing No. 16840518 dated 29.5.2013 was issued by the respondent and got encashed by the complainant or not as the present proceedings only relate to issuance of Cheque No. 05463118 and not for any other cheque.

6. The Hon'ble Supreme Court while dealing with the appeal against acquittal in a case titled The State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408) held as under:-- "There cannot be any cavil with the legal proposition that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on re-appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to interfere with the acquittal judgment." The Apex Court in another case titled Khan v. Sajjad and 2 others (2004 SCMR 215) held as under:-- "It is to be noted that in criminal appeals filed against acquittal orders, the Appellate Courts have to exercise jurisdiction cautiously because the respondents who has been exonerated from the criminal charges, enjoys double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of the Court declaring him not guilty and that is why it is always said that if at all the Appellate Court comes to conclusion to interfere in the acquittal order it should strictly follow the principles laid down in this behalf from time to time by superior Courts for the guidance of the Courts sized with the matter." While taking the guidance from different pronouncements of Hon'ble Supreme Court and in the light of the circumstances indicated above, I find that the learned trial Court has rightly acquitted the respondent. There is no force in the contentions of learned counsel for the appellant. Resultantly, this appeal fails and is dismissed in limine under section 421, Cr.P.C. HBT/F-7/L Appeal dismissed.