HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.478 of 2017
Appellant : Iqbal Ahmed son of Muhammad Dad Khan
through Mr. Muhammad Zeeshan
Advocate for Appellant
Respondent No.1 : Syed Danish Hussain Zaidi son of
Syed Tanveer Hussain Zaidi
Through Mr. Muhammad Irfan, Advocate
Respondent No.2 : XXVIIIth Judicial Magistrate
District Karachi East.
DPG Ms. RubinaQadir.
Date of hearing : 21.11.2019
Date of Judgment : 21.11.2019
J U D G M E N T
Abdul MaalikGaddi, J.–This criminalacquittal appeal is directed against the Judgment dated 07.09.2017 passed by the learned XXVIIIth Civil Judge & Judicial Magistrate, Karachi East, in Crl. Case No.3158/2015,under Crime No. 340/2015, registered u/s 489-F PPC, of P.S. New Town Karachi, whereby the learned trial Court after full dressed trial acquitted the respondent No. 1 under-section 245(1) Cr.P.C. by giving him benefit of doubt.
2. The brief facts of the prosecution case are that on 10.10.2015, accused namely Syed Danish Hussain Zaidi, dishonestly issued a cheque bearing No. 0185134 amounting to Rs. 650,000/- to the complainant namely Iqbal Ahmed towards fulfillment of an obligation. On same day, the complainant presented the said cheque in his account in Bank Al-Habib, Bahadurabad Branch, Karachi, and same was bounced for insufficient funds.
3. It appears from the record that a formal charge under-section 242 Cr.P.C. was framed against the respondent/accused on 09.01.2016 at Ex. 2. It was read out to the accused to which he has denied the case and claim of the appellant and claimed his trial vide its plea available on record available at 2/A.
4. To prove this case, prosecution examined 5 witnesses out of 6 PWs. The PW-1 Muhammad Sohail at Ex. 3 and produced photocopy of cheque bearing No. 0185134 of amount of Rs. 650,000/- of Bank Al-Falah at Ex. 3/A, return memo at Ex. 3/B and Original letter of Bank Al-Habib to SHO as Ex. 3/C. PW-2 Iqbal Ahmed (complainant), was examined at Ex. 4 and produced cheque bearing No. 0185134 at Ex. 4/A, memo of return of cheque at Ex. 4/B. Application to SHO P.S. New Town at Ex. 4/C. Statement u/s 154 Cr. P.C. at Ex. 4/D, FIR at Ex. 4/E, Memo of place of inspect at 4/F. PW-3 Muhammad Shahid was examined at Ex. 5. PW-4 Zohaib Ali Khan (Relationship Manager, Bank Al-Falah) at Ex. 06. PW-5 SIP Shahnawaz Khan (I.O.) was examined at Ex.07 who produced verification letter written to bank at Ex. 7/A and arrival & departure entries at Ex. 7/B. It appears that learned ADPP has given up witness namely Khalid Mehmood being a formal witness at Ex. 8. These witnesses were cross-examined by the Counsel for the respondents and thereafter prosecution has closed his side vide statement available on record as Ex. 9.
5. Statement of the accused/respondents was recorded u/s 342 Cr.P.C. at Ex. 10, in which the accused/respondent has claimed his innocence and denied the allegation of the prosecution being false. However, he has not examined himself on oath nor produced any evidence in his defence.
6. Mr. Muhammad Zeeshan, learned Counsel for the appellant has contended that the Judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record, that the grounds on which the trial Court proceeded to acquit the respondent are not supportable from documents and evidence on record. He further submitted that the respondent has been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondent could be acquitted. He further contended that the learned trial Court has based its findings of acquittal mainly on the basis of minor contradictions on non-vital points of the statements of the prosecution witnesses and that the prosecution evidence has not been properly appreciated, therefore, under these circumstances, he was of the view that this appeal may be allowed and the respondent may be awarded exemplary punishment on account of cheating/fraud with the appellant.
7. Mr. Muhammad Irfan, learned Counsel for the private respondent strongly supported the impugned judgment and has contended that the learned trial Court has rightly extended the benefit of doubt in favour of private respondent. It was further contended that the appellant has miserably failed to establish the charge against the accused and so also the ingredients for application to prove a particular case as mentioned u/s 489-F PPC.
8. Ms. RubinaQadir, learned DPG has submitted that the judgment passed by learned trial Court is perfect in law and on facts and submits that the learned trial Court while delivering the judgment has addressed all points involved in this case quite comprehensively, therefore, need no interference in it.
9. I have considered the submissions advanced at the bar and have perused the evidence produced in trial Court with the able assistance of the advocates for parties.
10. After hearing the learned Counsel for the parties and after going through the record, I have come to the conclusion that prosecution has failed to prove its case against respondent No. 1 for the reasons that alleged cheque was issued to the complainant/appellant for encashment on 10.10.2015 and the said cheque was bounced on its presentation for want of insufficient amount, but surprisingly FIR of the incident was lodged on 31.10.2015 almost after the period of 20 days for which no satisfactory explanation has been furnished. During the course of arguments, I have specifically asked the question from the learned Counsel for the appellant to explain inordinate delay in lodging the FIR, but he has no satisfactory answer with him. It is noted that complainant has not produced single evidence nor any witness in support of his claim that the huge amount of Rs. 950,000/- which complainant claims that he had given in cash to the accused for the purpose of business of birds. Neither complainant has given any proof or produced witness of transaction of amount of Rs. 550,000/- which complainant claims that he has transferred from the account of his son to the account of accused. It is also noted that not a single evidence is produced by the complainant or any witness in support of complainant’s claim that complainant has given money to the accused against which he issued cheque. Complainant in his evidence has admitted that he has not produced any evidence or any agreement in support of cash amount of Rs. 950,000/- given to accused. I have also noted the contradictions in the statement of complainant before this Court and his statement to police in FIR and statement u/s 161 Cr.P.C,therefore, on the basis of these contradictions no reliance could be safely placed for conviction of the appellant.
11. Under the aforementioned facts and circumstances and in view of the nature of the case, that mere issuance of the cheque and then bounced on its presentation do not constitute offence u/s 489-F PPC. Perusal of language of section 489-F PPC reveals that this provision will be attracted if the following conditions are fulfilled and proved by the prosecution;
(i) issuance of cheque
(ii) such issuance was with dishonest intention
(iii) the purpose of issuance of cheque should be:
(a) For re-pay of loan; or
(b) To fulfill an obligation which in wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance;
(iv) on presentation, the cheque is dishonored.
12. In the case in hand, complainant has lodged the FIR on the basis of alleged cheque, but he has not brought forward any proof which would substantiate that the said cheque was issued for fulfillment of any obligations or repayment of loan. It is by now a well settled principle of law that mere issuance of cheque which was subsequently dishonored does not constitute an offence, unless it is established that the same was issued with dishonest intention for repayment of loan or for discharging of an obligation which are missing in this case. During the course of arguments, when these lacunas, contradictions and lapses were brought in the notice to the appellant for explanation, he has no satisfactory answer with him.
13. Considering all the aspects of the case, I have come to the conclusion that the trial Court has rightly extended benefit of doubt in favour of private respondent and the impugned Judgment contains valid reasons for extending benefit of doubt to the said respondent, hence does not require any interference by this Court. I may further observe here that there is clear distinction in appeal against conviction and appeal against acquittal. It is settled law that accused who has/have been acquitted in crime can claim double presumption of innocence, one at the pre-trial stage and the other he/they may earn on the basis of judgment of acquittal in his/their favour from the Court of competent jurisdiction. The competent Court in the instant matter has extended benefit of doubt to the respondent after examining the entire evidence. Therefore, I see no reason to interfere with the impugned judgment. Consequently, this criminal acquittal appeal is dismissed along with listed application(s),if any.
JUDGE
RashidAli/Steno