PLJ 2022 Lahore 211
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonouring of cheque--Penal and Criminal liability--Perusal of original cheque clearly reveals that it has been signed by deceased father of Respondents No. 4 and 5--Account was in name of deceased father of Respondents No. 4 and 5--Penal or criminal liability does not devolve upon legal heirs--Respondents No. 4 and 5 may have inherited business of their late father and while they may have inherited his estate, it does not mean that they become criminally liable for actions or activities allegedly undertaken by their late father--While a suit for recovery from estate or inheritance may be in order, if at all, an application for registration of a criminal case against Respondents No. 4 and 5 on account of alleged deeds of their father cannot be countenanced--Concept of substitution of accused/convict is alien to criminal jurisprudence--Offences involving common object or common intention apart, a person is only liable for an offence that he commits himself--For any offence committed by an accused who dies, his legal heirs cannot be subjected to rigors of offence since criminal jurisprudence does not recognize devolving of criminal liability.
[Pp. 213, 214, 217 & 218] A, B, D & E
Constitution of Pakistan, 1973--
----Art. 3--Provision of safe Guard--Art. 3 of Constitution of Islamic Republic of Pakistan, 1973 clearly provides safeguards against exploitation and persecution of citizens. [P. 217] C
Rana Muhammad Ibrahim, Advocate for Petitioner.
Malik Shoukat Mahmood Mahra, Asstt. Advocate General for Respondents.
Date of hearing: 17.11.2021.
PLJ 2022 Lahore 211
[Multan Bench, Multan]
Present: Muhammad Shan Gul, J.
MUHAMMAD SAEED AKHTAR--Petitioner
versus
JUSTICE OF PEACE, etc.--Respondents
W.P. No. 17996 of 2021, decided on 17.11.2021.
Judgment
The titled constitutional petition is sought to be decided through this judgment.
2. Facts in brief are that the petitioner filed an application under Sections 22-A & 22-B, Cr.P.C. for registration of a criminal case against Respondents No. 4 and 5 i.e. Chaudhry Ali Zahid and Chaudhry Khizar Zahid sons of Muhammad Zahid Iqbal. The petitioner claimed in his petition that the respondents were known to him and that they had purchased agricultural machinery from him and had issued a cheque Bearing No. 1673569183 dated 03.11.2020 amounting to Rs. 11,00,000/- to be drawn at MCB, Nawan Sher Branch, LMQ Road, Multan but that when the petitioner deposited the cheque in his account the same was dishonoured thrice. That the petitioner approached respondents for payment of his monies but they refused and in this view of the matter an offence in terms of Section 489-F, PPC was attracted to the facts and circumstances of the case.
3. A Justice of Peace requisitioned a police report in which it is clearly mentioned that the account in question at the MCB, Nawan Sher Branch, LMQ Road, Multan was in the name of the deceased father of Respondents No. 4 and 5 i.e. one Muhammad Zahid Iqbal who had passed away in December, 2020 and that the petitioner had admitted this aspect during the course of inquiry. It was also mentioned in the report that Respondents No. 4 and 5 were now managing the business of their late father through an authorized agent and were claiming under him.
4. A Justice of Peace vide order dated 03.7.2021 after clearly noting that the dishonoured cheque was drawn by the late father of Respondents No. 4 and 5 and after observing that there was nothing on record whereby the deceased father of Respondents No. 4 and 5 had personalized the transaction so as to become liable on behalf of the respondents, dismissed the application for registration of case since Respondents No. 4 and 5 had no concern with the alleged transaction and since the petitioner had presented a cheque not drawn by Respondents No. 4 and 5 but by their late father.
5. The petitioner has now filed this constitutional petition praying that the order passed by a Justice of Peace be declared bad in law and a direction be issued to the Station House Officer to register a criminal case against Respondents No. 4 and 5.
6. Notice was issued to the learned Asstt. Advocate General who has also been heard in the matter and, therefore, this case is being decided as a Pacca case.
7. Learned counsel for the petitioner submits that since Respondents No. 4 and 5 inherited the business of their late father, were carrying on the same business and since they were in the know of the alleged transaction between their father and the petitioner a criminal case ought to be ordered against them so that the petitioner was able to recover monies due to him.
8. On the other hand, learned Asstt. Advocate General has seriously objected to this petition and has alluded to the terminology employed in Section 489-F, PPC and has laid great stress on the use of the word 'whoever’ appearing at the start of Section 489-F, PPC and submits on the basis thereof that it is only a person who issues a cheque himself and which is dishonoured who can be held liable for an offence under Section 489-F, PPC and not any other person such as Respondents No. 4 and 5 who have neither issued the cheque in question nor are they the account holders of the account in question.
9. I have heard the learned counsel for the parties and have perused the available record.
11. Even more alarming in the present context is the absence of any written agreement between deceased father of Respondents No. 4 and 5 and the petitioner about the alleged transaction or for that matter any undertaking on the part of deceased father of Respondents No. 4 and 5 to own up or pay outstanding debts of Respondents No. 4 and 5. Likewise, the petitioner's false assertions in his application and in the present petition about Respondents No. 4 and 5 having issued the cheque in question also put paid the case of the petitioner. In fact, on this count alone the petitioner's petition merits to be dismissed because the petitioner has lied to the Court and has presented his side of the story in a false manner. What also runs against the petitioner is the fact that he kept quiet for a period of six months after the death of father of Respondents No. 4 and 5 and then sprung a shock on Respondents No. 4 and 5 in June, 2021.
“7. The crucial question to be decided is whether under Order XXXVII, Rule 2, C.P.C., a suit for recovery on the basis of cheque can be filed against the legal heirs of the person who had issued the said cheque. The provisions of Order XXXVII, Rule 2 make it clear that they are specific to the bills of exchange, hundies or promissory notes and that suits thereunder can only be filed against the executants of the aforementioned instruments and not otherwise.
8. It would also be seen that maker of the cheque, Abdul Maalik (deceased) had died before the cheque could be presented for encashment. The said cheque, thus, ceased to have any effect as a bill of exchange on the death of its maker. Therefore, the suit under Order XXXVII, Rule 2, C.P.C. filed by the petitioner was misconceived and was not maintainable.
9. In this regard, the provisions of Sections 29 and 29- A of the Negotiable Instruments Act, 1881, which have direct relevance to the issue, are reproduced as under:
"(29) A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such."
"(29)A. No person is liable as maker, drawer, endorser or acceptor of a promissory note, bill of exchange or cheque who has not signed it as such:
Provided that where a person signs any such instrument in a trade or assumed name he is liable there on as if he had signed it in his own name."
10. The aforementioned provisions make it clear that a party who is not a drawer or maker of a cheque/bill of exchange is not liable thereon and accordingly cannot be sued under Order XXXVII, Rule 2, C.P.C. Under Section 29-A of the Negotiable Instruments Act, 1881, in order for a legal representative of a deceased person to become liable under the cheque issued by his predecessor, it is necessary that he signs the said cheque for assuming the liability thereunder. However, this is not the case here as respondents did no such thing. The respondents, therefore, were not liable to the petitioner under the said cheque issued by their predecessor.”
14. In “Syed Shan Abbas v. The State and another” (2014 YLR 882), it has been held as follows:
“A bare perusal of Section 489-F, PPC would reveal that to constitute an offence under this provision it is mandatory to prove that the accused himself issued the cheque. It was not case of the complainant that the petitioner had issued a cheque rather he stated that the petitioner gave him a cheque issued by one Aneela Qaiser. As mentioned above, Section 489-F P.P.C. is attracted only where the cheque is issued by the accused himself. So in the present case this basic ingredient i.e. "issued" is missing. Here a question arises whether the petitioner has committed no offence? The answer is that "not under this section but under other provisions of Law". For the sake of academic discussion a question comes into mind, "Was it intent of Legislature to bring only those cases within the ambit of Section 489-F, P.P.C. where cheque was issued by the accused himself or whether mere handing over a cheque belonging to someone else's account would also bring the accused liable under this section?" The answer to my mind is that this section applies to those cases only where cheque is issued by the accused himself and not in other cases. This answer/intent has been gathered by me from careful perusal of this very provision of law. In the later part of this section it has been provided that to come out from the rigors of this Section the accused must show that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault… (Boldness of words and underlining is mine). This part of the provision makes it crystal clear that intention of the Law Maker is that this section would attract only to those cases where the cheque is issued by the accused himself and not in other cases because otherwise word "his" would not have been written and instead word "the" was sufficient. So the most important and basic ingredient to constitute an offence under this section is that the accused must himself issue a cheque.”
15. In “Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others” (PLD 2009 Lahore 401), it has been held at 406-C as follows:
“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.”
16. On the basis of the last precedent case quoted above i.e. “Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others” (PLD 2009 Lahore 401) the petitioner's contentions about his aim being to recover monies due to him can be laid to rest since it is clearly mentioned in the precedent case in question that the aim behind insertion of Section 489-F, PPC is not to encourage or precipitate recovery of monies but to punish the person ‘who’ dishonestly issued a cheque.
17. In neighboring India Section 138 of the Negotiable Instruments Act, 1881 echoes Section 489-F, PPC. Although both Sections are differently worded, the spirit, aim and essence of both Sections seem to be the same.
18. In Girga v. K. Vinay 2004(1) Recent Criminal Cases 458 (Kerala), the Kerala High Court has ruled as follows:
“...on careful perusal of the relevant statutory provisions of law, it is clear that the intention of the legislature was not to make the provisions for prosecuting the legal heirs of the drawer of a cheque, in the event of dishonour under the provisions of Negotiable Instruments Act. It is needless to say that the provisions of the Negotiable Instruments Act are a self-contained enactment and wherever there is lacking, the provisions of the Code of Criminal Procedure will have to be pressed into service. As stated earlier, there are absolutely no statutory provisions made under the Negotiable Instruments Act to cover the situation like this. Under the provisions of Section 394 of the Cr.P.C., it is seen that the said section deals with the abatement, of appeals filed Under Section 377 or 378 of the Cr.P.C. This provision cannot be pressed into service for the reason that the Trial Court or this Court has not been dealing with an appeal under the said provisions. It is also necessary to mention that the provisions of Section 256 of the Cr.P.C. deal with the situation that arises after the death of the complainant. In the case in hand, the drawer of the cheque, the accused in a proceeding of this nature, had died even earlier to the presentation of the complaint. Such being the case, the provisions of Section 256 of the Cr.P.C. also cannot come to the aid of the complainant. From this aspect, it is clear that the statute law in this regard is totally silent to meet the situation. When this be the intention of the Legislature, the Courts of law will have to interpret the law, keeping in mind, the golden rules of interpretation and the Courts should always interpret the law keeping in view the letter and spirit of law and such an interpretation should advance the purpose of legislation.”
19. In view of these clear pronouncements, it is evident that Respondents No. 4 and 5 are not drawers of the cheque in question and cannot be held liable upon a reading of Section 489-F, PPC. One of the basic ingredients of the offence contemplated by Section 489-F, PPC is that a person must have drawn and issued the cheque himself in respect of an account maintained by him in a bank and that cheque is dishonoured. It is also evident that the person liable in respect of this penal provision is only the person who has drawn the cheque. Similar observations have been recorded by the Andhra Pradesh High Court in Bhupinder Lima v. State of Andhra Pradesh 1999(6) ALD 143.
21. The present petition being misconceived is dismissed.
(Y.A.) Petition dismissed
0 Comments