2016 P Cr (PLP)

QALANDAR ALI KHAN, J.

This Criminal Revision under section 439, Cr.P.C. by Tariq Ali, convict/petitioner, is directed against the judgment/order of learned Additional Sessions Judge-II, Nowshera, dated 24.02.2014, thereby upholding judgment/order of the learned Judicial Magistrate-II, Nowshera dated 16.01.2014 in case vide FIR No. 04 dated 04.01.2013 under sections 419/420/489-F, P.P.C. registered at Police Station Risalpur, Nowshera, whereby, the petitioner was convicted under section 419, P.P.C. and sentenced to undergo Rigorous Imprisonment for a term of two years and fine of Rs.10, 000/- or in default of payment of fine to undergo further Simple Imprisonment for two months. The petitioner was also convicted under section 420, P.P.C. and sentenced to undergo Rigorous Imprisonment for a term of one year and fine of Rs.10,000/- was also imposed on him. In default of payment of fine the petitioner was to undergo Simple Imprisonment for two months. The petitioner was further convicted under section 489-F, P.P.C. and sentenced to undergo three years Rigorous Imprisonment and to pay fine of Rs.20000/- or in default of payment of fine to undergo six months Simple Imprisonment. The benefit of section 382-B, Cr.P.C. was, however, extended to the convict/petitioner.

2. The FIR was lodged on the report of complainant/respondent No.2, Syed Muhammad Hussain, who, in his written report to the Deputy Superintendent of police, Nowshera Cantt: complained that though the petitioner was a time keeper in Loco motive factory but he impersonated himself as Director FIA and fraudulently received Rs.8,00,000/- (eight lacs) from him for appointment of his jobless son. The complainant further alleged that later on the petitioner handed over two cheques for repayment of the amount of Rs.8,00,000/- (eight lacs) on 20.03.2012 and 10.09.2012; but the cheques were dishonoured by the bank because of non-availability of account of the petitioner in the bank.

3. After registration of the case, the investigation officer took into possession relevant documents including the cheques in question, joint application of the complainant with another affectee namely Saif-ul-Malook to the Managing Director Loco-motive Factory Risalpur as well as record from the bank showing non-availability of funds in the account of petitioner. The petitioner, initially, went into hiding and was therefore proceeded against under sections 204 and 87, Cr.P.C. and challan was submitted against him under section 512, Cr.P.C.; but he was arrested on 21.06.2013, and supplementary challan was submitted against him.

4. On receipt of supplementary challan after arrest of the petitioner, he was provided copies and then charge was framed against him under sections 419/420/489-F, P.P.C., to which he pleaded not guilty and claimed trial. In order to substantiate its case against the petitioner, the prosecution examined as many as six witnesses, whereafter statement of the petitioner was recorded under section 342, Cr.P.C., wherein he refuted allegation of the prosecution, but declined to be examined on oath and/or produce defence evidence. On conclusion of trial, the learned Judicial Magistrate-II, Nowshera, found the petitioner guilty of all the three charges and convicted and sentenced him to the punishments mentioned hereinabove. Aggrieved of the judgment/order dated 16.01.2014 of the learned Trial Court/Judicial Magistrate-II, Nowshera, the petitioner preferred appeal, which was dismissed by the learned Additional Sessions Judge-II, Nowshera, vide judgment/order dated 24.02.2014; hence this criminal revision, inter alia, on the ground that case of the prosecution was full of doubts and contradictions but he was subjected to the penalties on mere speculations. The petitioner further contended that the judgments /orders of both the trial court as well as appellate court were result of misreading and non-reading of the evidence.

5. Arguments of the learned counsel for the convict/petitioner and State counsel, assisted by learned counsel for the complainant/respondent No.2 heard, and record perused.

6. It may be observed at the outset that this is not the first case of its kind registered against the petitioner for impersonating himself as Director FIA and fraudulently receiving handsome amount from different people to secure job for their jobless sons, as the joint application of the complainant and another person namely Saif-ul-Malook would clearly show that the letter was also robbed of his hard earned money in order to get a job for his unemployed son. Besides, the petitioner has also been convicted in a case of similar nature lodged by Muhammad Saqib, complainant, vide FIR No. 129 dated 22.02.2013 under sections 419/420/489-F, P.P.C. PS Risalpur, Nowshera. In the said case, the conviction and similar sentences by the trial Court were upheld not only by the appellate Court but also by this Court vide judgment/order dated 01.12.2014. As such, this is not an isolated or first case of its kind to create some doubt about involvement of the petitioner in the commission of the offence.

7. Moreover, in this case, too, there is overwhelming evidence to bring home charge against the petitioner. The issuance of cheques is not denied, neither signatures thereon are disputed. Likewise, dishonouring of the cheques is proved on the record, leaving no doubt about commission of offence under section 489-F, P.P.C., which lays down as under; "[489-F. Dishonestly issuing a cheque

whoever dishonestly issues a cheque towards repayment of a loan or fulfillment 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.]" The section clearly places burden of proof on the accused to establish 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. However, in this case no such proof is forthcoming to discharge the burden under the law, and thereby absolve the petitioner of the responsibility.

8. During his arguments, the learned counsel for the petitioner specifically referred to "2010 SCMR 806", while augmenting his argument that securing job through payment of money was not a lawful obligation within the meaning of section 489-F, P.P.C., therefore, the petitioner could not be convicted for the offence when the object/obligation was itself unlawful. Unfortunately, the learned counsel totally overlooked this aspect of the case that the petitioner impersonated himself and fraudulently made the complainant and other affected persons to pay handsome amount out of their hard earned money in order to provide jobs to their jobless sons. The criminal act on the part of the petitioner cannot be condoned on the ground that he extracted the money on a false promise of providing employment to the jobless sons of the complainant and other persons by impersonating himself as Director FIA, as there can, possibly, be no doubt about the dishonest and fraudulent intention of the petitioner, who not only impersonated himself as Director FIA and received money for providing jobs to the unemployed sons of the complainant and other persons but also dishonestly issued cheques which were, admittedly, dishonoured. Therefore, the petitioner was convicted and sentenced under the aforesaid sections of law, only after proof of all the charges against him, and after all the prerequisite of section 489-F, P.P.C. were fulfilled by the prosecution i.e. (i) issuance of cheuqes; (ii) such issuance was with dishonest intention; (iii) the purpose of issuance of cheques was; a) to repay a loan; or b) to fulfill an obligation; (iv) on presentation, the cheuqes were dishonoured [2010 SCMR 723, (appellate jurisdiction)]

9. The petitioner declined to be examined on oath or produce defence evidence, and failed to answer specific questions about his impersonation, receiving the amount and dishonestly issuing cheques for repayment of the amount when he had not made arrangements with the bank for honouring the cheques.

10. There is, as such, no misreading or non-reading of the evidence on the part of trial court or for that matter at the appellate forum. Therefore, the criminal revision petition is without substance, hence dismissed accordingly. HBT/252-P Petition dismissed.