2014 PLP 2241 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Accused Shah Fahad and his wife Mst. Abida, booked in Crime No.76/2013 under sections 489-F, 420, 406 P.P.C., registered at Police Station Tando Allahyar, are facing trial in the Court of Civil Judge and Judicial Magistrate, Tando Allahyar, in Criminal Case No.89/2013. They filed an application for their acquittal under section 249-A, Cr.P.C., which was dismissed vide order dated 3-8-2013. Hence the instant application.

2. Relevant facts necessary for disposal of captioned Criminal Miscel-laneous Application are that complainant Pir Ghulam Karim Shah sold out his agricultural land admeasuring 12-18 acres to the accused persons in the sum of Rs.44,00,

000. The accused issued a Cheque bearing No.03797020 in the sum of Rs.29,00,000 dated 18-2-2013, to the complainant. On its presentation, it was bounced due to deficient funds. Firstly, the complainant approached the accused and subsequently on their refusal to pay the said amount, he lodged F.I.R. at Police Station.

3. Learned counsel for the applicant at the very outset submits that the said disputed cheque was allegedly issued by one Ali Ahmed from his own account and not by the present applicants. It is next contended that there is delay in registration of F.I.R. without any explanation. Learned counsel submits that being a case of contractual obligations, if at all, the complainant has to approach the civil Court as there is no criminal liability involved in the matter. To support his contentions, learned counsel placed his reliance on the case of Allah Rakhio and others v. The State (2001 PCr.LJ 551), wherein it was held by the Division Bench of this Court that the complainant had made an attempt to circumvent the civil remedy into a criminal case hence there is abuse of process of the Court, therefore, no case is made out on the basis of facts admitted and patent on the record, then allowing the prosecution to continue with the trial would amount to abuse of process of law. In the case of Shaikh Muhammad Taqi v. The State (1991 PCr.LJ 963), referred by the learned counsel for the applicant, it is held that mere breach of contract cannot give rise to a \criminal prosecution. In the case of Muhammad Shafi v. The State (1985 PCr.LJ 540), it was held that allegation made against accused, even if assumed to be true disclosing no offence against him, the criminal proceedings could not be allowed to continue in circumstances.

4. Learned counsel for the applicant further submits that admittedly the complainant has filed a F.C.Suit No.73/2013, prior to lodging the F.I.R. against both applicants and others. Vide order dated 28-11-2013, the plaint of the said suit was rejected under Order VII, Rule 11, C.P.C, merely on the ground that the plaintiff (complainant) Pir Ghulam Karim Shah averred in Paras Nos.2, 3 and 7 that he sold out his land, handed over the possession, executed a registered deed dated 19-9-2011, hence his suit is hit by section 42 of the Specific Relief Act. The learned Senior Civil Judge has further observed that the plaintiff has sold out his suit land and handed over the possession to the vendor in the year 2011, thus the present plaintiff has got no locus standi and no legal status and no legal right or title, hence he cannot bring the suit for declaration as he has no legal character in the property. The learned Senior Civil Judge in penultimate paragraph has observed that from the perusal of record, the total consideration amount was Rs.44,00,000 but the registered sale deed shows Rs.6,25,000, which the plaintiff had accepted and put his signature voluntarily on the sale-deed. It has been further observed that the sale-deed is not fraudulent and has been signed by the plaintiff himself and plaintiff has produced his NIC also, thus the plaintiff's suit is without cause of action and is not maintainable according to law.

5. Conversely, Mr. Jawaid Chaudhry representing the complainant submits that the prima facie offence has been committed by both the applicants by issuing cheque from the account of accused Ali Muhammad who is brother of lady accused. Learned counsel next contended that prima facie the offence had been committed. It is further contended that the complainant has filed Civil Appeal No.27/2013 against the order passed on application under VII, Rule 11, C.P.C. and the same is sub-Judice before the District Judge, Tando Allahyar. Learned counsel placed his reliance on the cases viz. State v. Muhammad Aslam Khan (2009 SCMR 294) and The State v. Raja Abdul Rehman (2005 SCMR 1544). Both the citations have carefully been perused keeping in view the peculiar facts and circumstances of the case in hand, these citations are not attracting in the instant case.

6. Undisputedly, the cheque in question was neither issued by Shah Fahad nor his wife Mst. Abida (applicants) but the same was issued by one Ali Ahmed Memon from his own account, therefore, the ingredients of section 489-F, P.P.C. or criminal breach of trust under section 406, P.P.C. are not attracting, more particularly, the civil litigation with regard to sale transaction of the agricultural land is sub-judice before the proper forum. It shall be advantageous to reproduce section 489-F P.P.C. herein-below:-- "489-F. Dishonestly issuing a cheque:--whoever dishonestly issues a cheque towards repayment 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."

7. Very first word of the aforementioned provision of Pakistan Penal Code reads that the person who issued the cheque is rendered liable himself for proceedings under this section. In the instant case, admittedly the applicants have not issued the cheque in question, knowingly that payment of the cheque was not available on presentation. The object of the aforementioned penal provision is to curb the fraudulent or dishonest issuance of cheque and to punish a person who dishonestly issued the cheque. This section clearly lays down that whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation, is liable to face the consequences on its being dishonored. In the absence of mens rea, criminal proceedings ordinarily cannot proceed. When cheque was bounced, the prosecution has to establish that who has issued the cheque and whether such issuance was with dishonest intention. The aforementioned provision further reveals that the purpose of issuance of cheque should be to repay a loan or to fulfil an obligation. It is astonishing that on sale transaction of the suit-land with the applicant, the cheque has been obtained from one Ali Muhammad in the sum of Rs.29,00,000 though the complainant sold out the land in sum of Rs.44,00,000 and thereafter, executed a sale-deed as well. It is also an admitted fact that the civil litigation has been initiated prior to registration of F.I.R., therefore, to reach at the just and exact conclusion of the trial, it would be appropriate that such matter may be resolved / decided through civil litigation.

8. The crux of the aforementioned discussion is that the proceedings pending before the trial Court against the applicants/accused are abuse of process of the Court and same are quashed. Consequently, the present application is allowed. HBT/S-22/Sindh Proceedings quashed.