2023 PLP 1114 (MLD)

AFTAB AHMED GORAR, J.

The appellant being dissatisfied with the order of acquittal dated 05.08.2021, recorded under section 245(i) Cr.P.C. in favor of respondent No.1 by the learned Judicial Magistrate, Karachi East, passed in Criminal Case No.81/2020 arising out of Crime No.604/2019 registered at Police Station Aziz Bhatti under section 489- F, P.P.C. has filed this appeal under section 417, Cr.P.C. with a prayer to set aside the impugned judgment and convict the accused/respondent No.1.

2. Learned Counsel for the appellant submitted that the learned trial Court has failed to consider the statutory provision of law provided under section 489-F, P.P.C. and the issuance of cheque with dishonest intention depriving the appellant from his rights to have the money and has failed to fulfil is obligation of payment. He has submitted that the evidence of the bank staff as well as other witnesses was never shaken by the respondent No.1 during cross-examination hence the learned trial Court failed to consider the statement of bank staff about dishonouring of cheque and passed the impugned judgment in hasty manner. He contended that the impugned judgment is without jurisdiction, illegal, null as well as void and has no legal effect. Learned Counsel for the appellant during his arguments was repeatedly arguing to show that the amount of cheque was arranged though on the same date but after dishonouring of the cheque, which clearly manifests dishonesty of the respondent No.1 towards fulfilling his obligation. He submitted that it is crystal clear from the statements of witnesses including bank staff that the respondent No.1 has committed the offence and therefore prayed that the impugned judgment may be set aside and respondent No.1 may be convicted.

3. On the other hand, learned Additional Prosecutor General assisted by the learned Counsel for the respondent No.1 submitted that the impugned judgment is well reasoned as well as speaking one and there is hardly any improbability or infirmity in the impugned judgment and it does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution aside and reached at the conclusion that the prosecution has miserably failed to prove the charge against the respondent No.2 beyond any reasonable doubt. They therefore, submitted that this criminal acquittal appeal may be dismissed.

4. I have heard the learned Counsel for the parties, conscientiously perused the evidence as well as record available before me.

5. Admittedly the case in hand is registered under section 489-F, P.P.C. whereby dishonouring of a cheque was alleged. Minute scrutiny of the record reveals that a cheque was given by respondent No.1 to the appellant containing date as "20.11.2019" which was submitted for clearance by the appellant on "19.11.2019". The contention of the learned Counsel for the appellant was that the cheque was dishonoured due insufficient fund on 20.11.2019 hence the respondent No.1 is liable to be prosecuted for dishonestly issuing the cheque under section 489-F, P.P.C. For sake of convenience section 489-F, P.P.C. is reproduced below:- 489-F, P.P.C.:

Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punished 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 hank was at fault in not honouring the cheque.

6. Perusal aforesaid provisions of section 489-F, P.P.C. shows that in case it has been successfully showed that arrangements of payment were made on the date of which cheque is issued, such fact is enough to show bona fide of payee. In the case in hand admittedly the date mentioned on the cheque was 20.11.2019, which was dishonoured in the early bank hours whereas in the end of bank hours on the same date i.e. 20.11.2019 the funds were available in the account of payee hence no question of dishonesty arises. Had there been any dishonesty, the respondent No.1 would not have arranged the amount in his account on the same date. Furthermore, when it has come to the knowledge of the appellant that the amount was made available in the evening of 20.11.2019, he instead of dragging respondent No.1 in litigation should have presented the cheque for clearance which he avoided and chose to lodge the FIR and dragged the respondent No.1 in litigation.

7. After going through the record with the assistance of the learned Counsel for the parties, I have no hesitation to observe that the impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity whereas the facts discussed above shows that the respondent No.1 made available the funds on the very date for which cheque was issued and dishonoured hence bona fide of the respondent No.1 could not be questioned in the circumstances. In my view the appellant has failed to establish a case to interfere with the impugned judgment.

8. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of lower Court whereby accused were exonerated from the commission of crime held by the apex Court in the cases of Muhammad Ijaz Ahmad v. Fahim Afzal (1998 SCMR 1281), Jehangir v. Aminullah and others (2010 SCMR 491) and Khuyrram v. The State and others (2019 SCMR 1317).

9. From the facts discussed above, there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons therefore, does not warrant any interference by this Court. The appellant has miserably failed to establish extra-ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial Court may be interfered with by this Court.

10. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed. JK/N-27/Sindh Appeal dismissed.