ORDER SHEET
IN THE HIGH COURT OF SINDH
CIRCUIT COURT MIRPURKHAS
Criminal Miscellaneous Application No.S-02 of 2024
DATE ORDER WITH SIGNATURE OF JUDGE
22.07.2024
Mr. Abdul Rauf Arain advocate for the applicant a/w applicant.
Mr. Muhammad Asif Zai advocate for the respondents No.3 and 4.
Mr. Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh.
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Khadim Hussain Soomro, J: The applicant is aggrieved by the order dated 29.11.2023 passed by learned Additional Sessions Judge-I/ Ex-Officio Justice of Peace, Mirpurkhas, in Criminal Miscellaneous Application No. 1733 of 2023, whereby the application as mentioned above was dismissed. Hence, the applicant moved the instant Criminal Miscellaneous application.
2. The learned counsel for the applicant submits that respondent No.4 (proposed accused) did not deny the issuance of a cheque, its presentation in the concerned Bank and dishonouring due to insufficient funds. He further submits that dishonouring of the cheques constitutes a cognizable offence. By contending so, he prayed for setting aside the impugned order.
3. On the other hand, learned counsel for the proposed accused submits that the cheques in question were given by respondent No.4 to his brother Suleman, who kept the same before the applicant as security cheques; that the cheques in question pertaining to the year 2015; Sulleman repaid entire amount to the applicant; however, the applicant has misused the cheques; that impugned order is based on sound reasoning. Therefore, the same does not call for any interference by this court.
4. I heard counsel for both sides and perused the record.
5. The proposed accused did not deny the issuance of the cheque, signature over the same, its presentation in the concerned Bank, and dishonouring due to insufficient balance. When the proposed accused issued the cheque in question, he was obliged to arrange the amount in his account for its encashment, but the proposed accused failed to do so.
6. According to Section 13, of the Negotiable Instruments Act, 1881, Negotiable instrument". (l) A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer. "A bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand." Dishonouring of the cheque in question, the presumption would be that the same was issued against some consideration as per 118(a) of the Negotiable Instrument Act 1881 unless the proposed accused rebuts it. In the present case, proposed accused issued two cheques in favour of the applicant, which were dishonoured on presentation before the concerned Bank. The holder of a negotiable instrument is considered due course unless it is to be established by the applicant that the same is for illegal consideration. In the case at hand, the proposed accused did not deny the insurance of the cheques. Even otherwise, a legal question of whether the cheques are for some consideration or as security of a promise requires evidence.
7. Reverting to another submission made by the learned counsel for the respondents that the dispute between the applicant and respondent No.3 and 4 is purely civil in nature and does not create criminal liability; at the most, dishonouring the cheque does a civil wrong for which respondent No. 3 has got the remedy to file a civil suit under order 37 rule 1 C.P.C. for the recovery of an amount in question. No doubt, the dishonouring of a cheque creates a civil wrong, but simultaneously, it is a criminal wrong. Therefore, both proceedings can be initiated concurrently. The aims and objectives of criminal proceedings are to punish criminals for an offence committed by them, while civil remedy is to recover the amount outstanding against defendants. Both proceedings have distinct features, natures and consequences. In this context, reliance can be placed in Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others & (PLD 2009 Lahore 401), the relevant Paragraph No. 09 of the judgment is reproduced as under :-
"Section 489-F, P.P.C. clearly lays down that whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation is liable to face the legal consequences on its being dishonoured. Issuance of a cheque towards repayment of a loan or fulfillment of an obligation is primarily a civil matter. Object of section 489-F, P.P.C is not to affect recovery of the amount in question under the dishonoured cheque. This penal provision of law has been brought on the Statute Book in order to punish a person, who dishonestly issues a cheque with reference to his civil liability. Similarly, availability of an alternate remedy to the complainant is no ground to discharge the accused because the aggrieved complainant can invoke civil and criminal law simultaneously.
8. Dishonoring a cheque constitutes a cognizable offence under the third column of the second schedule of the Criminal Procedure Code, 1898, necessitating registration of an F.I.R. as per Section 154. Therefore, the concerned station house officer (S.H.O.) is directed to record the applicant's statement. If the elements of a cognizable offence are established, it may be formally recorded in the book maintained under Section 154 of the Cr.P.C. If the information provided by the applicant is found to be false, proceedings under Section 182 of the Pakistan Penal Code (P.P.C.) shall be initiated against him. Furthermore, the nominated accused/respondents shall not be arrested unless there is incriminating evidence against them.
9. In light of the above facts and circumstances, an impugned order is set aside; however, it is clarified that the above discussion made in this order shall not prejudice either party's right.
10 In view of the above, the instant Criminal Miscellaneous application is disposed of accordingly.
JUDGE
"Saleem"