2019 M L D 636
S. 489-F---
Quashing of FIR---Scope---Prosecution case was that the petitioner and respondent were engaged in some business dealings during which certain amount was invested by the respondent with the petitioner---Petitioner could not fulfil his obligations due to which dispute arose between the parties---Ultimately, some settlement for repayment was worked out and the petitioner issued certain post-dated cheques, which could not be encashed on account of insufficient balance or other reasons---Criminal cases initiated on the basis of those FIRs, were ultimately compromised as the amount due on those cheques was paid by the petitioner---First Information Reports of the present case pertained to those cheques, which were issued by the petitioner and were bounced---Record showed that issuance of cheques and their failure in negotiation with Bankers was not denied---Admittedly, cheques were issued in respect of certain obligations---Some of the FIRs lodged earlier had been compromised between the parties---Said FIRs were properly investigated and final report was submitted in the courts---Cheques, in the present case, were issued by the petitioner dishonestly, as such criminal trial was initiated and the petitioner had entered into compromise in the earlier cases---Record transpired that in the present case, the cheques were dishonoured in the last quarter of the year 2015 while three earlier FIRs were lodged in a series at different police stations in the year 2016---Said circumstances showed that at the time of lodging of those earlier FIRs, the cheques of the present FIRs were already dishonoured and in possession of the respondent and he could lodge those FIRs easily and described those cheques in any of those earlier FIRs---Respondent after getting decision of one FIR, lodged another FIR and in that way the respondent misused the process of law for twisting the arms of petitioner as a tool of recovery of amount due---Such practice was certainly amounted to misuse the process of law, which could not be allowed---If it was proved that at the time of lodging of earlier FIR, the complainant already had a bounced cheque of the same party and he avoided to lodge FIR with intention to use it at some future stage as a tool of recovery then subsequent FIR should not be allowed---If the subsequent FIR was lodged then it was the duty of the concerned Magistrate to nip the evil in the bud by using the provision of S. 63, Cr.P.C---Dishonoured cheques might still be used for the purpose of a suit for recovery---Mala fide of the respondent being clear, the criminal miscellaneous applications were allowed and the impugned FIRs were quashed accordingly.
ORDER
FAHIM AHMED SIDDIQUI, J.---This single order will dispose of both the aforesaid criminal miscellaneous applications, as both are based on identical factual matrix of cases.
2.The facts of the case in a short compass are that the Applicant and Respondent No. 2 engaged in some business dealings during which certain amount was invested by the Respondent No. 2 with the Applicant. Because of some reasons, the Applicant could not fulfil his obligations due to which disputation arose between the parties. Ultimately, some settlement for repayment was worked out and the Applicant issued certain post-dated cheques, which could not be encashed on account of insufficient balance or other reasons. The Respondent No. 2 lodged FIRs, and the criminal cases initiated on the basis of those FIRs, which were ultimately compromised as the amount due on those cheques was paid by the Applicant. In this respect, a series of FIRs were lodged and compromised and the present two FIRs pertain to those cheques, which were issued by the Applicant in respect of the amount payable by him to the Respondent No. 2.
3.The contention of the learned counsel for the Applicant is that the Respondent No. 2 is misusing the process of law by lodging one after another FIR. According to him, the complainant (Respondent No. 2) was having all the bounced cheques in his possession at the time of lodging the first FIR and propriety demands that in the very first FIR, all the cheques should be mentioned so that the Applicant must face one trial only. He submits that the Respondent No. 2 is lodging one after another FIR and in this way forcing the Applicant to enter into compromise by throttling him through initiating criminal proceeding while he is avoiding to go to civil courts as such he intends not to provide him an opportunity of establishing his side of case by producing evidence. He takes reliance from an unreported case of a division bench of this Court in C.P. No. D-1005/2012 (Ghulam Mujtaba v. SSP Badin and others).
4.On the other hand, the learned counsel for the Respondent No. 2 submits that the Applicant has taken crores of rupees from the Respondent No. 2 as investment in his business and now he is neither giving profit nor the actual investment. According to him, the post-dated cheques were given by the Applicant with a promise that those cheques would be encashed on the given dates but that promise was not fulfilled. He submits that the Applicant is permanently residing in Lahore due to which it is hard for the Respondent No. 2 to follow him for getting repayment of his amount.
5.The learned DPG opposes the instant application by submitting that the cheques are dishonoured on different dates and a criminal proceeding on each and every cheque can be initiated separately.
6.I have heard the arguments and have gone through the material placed before me. The issuance of cheques and their failure in negotiation with bankers is not denied. It is also admitted that the cheques were issued in respect of certain obligations. It is also a fact that some of the F.I.Rs. lodged earlier have been compromised between the parties. All those FIRs were properly investigated and Final Report was submitted in the concerned courts. In these circumstances, it can be said that the cheques were issued by the Applicant dishonestly, as such criminal trial was initiated and the Applicant entered into compromise in the earlier cases.
7.It has been observed that during the course of business, cheques are issued and sometimes parties have intention to defer the payment and issuance of such cheques without arranging payments by the bankers are definitely 'issuing of cheque dishonestly', which attracts the offence of Section 489-F. The intention of legislator by inserting this penal section in PPC to make the business transactions more credible and to punish those who used to issue cheques dishonestly. I am of the view that the said provision of law was not promulgated with intention to use the same as tool for recovery. In this respect reliance, may be taken from the case reported as Muhammad Afzal v. The State and others (2012 YLR 2780) wherein it is held as under:
"The provisions of section 489-F, P.P.C. have not been promulgated for using it as a tool for recovery of the amounts due in business dealings for which the civil remedy has already been provided by law."
In the instant case, the cheques were dishonoured in the last quarter of the year 2015 while three earlier FIRs were lodged in a series at different police stations in the year 2016, meaning thereby that at the time of lodging of those earlier FIRs, the cheques of the present FIRs were already dishonoured and in possession of the Respondent No. 2 and he may easily lodge these FIRs simultaneously and/or he may described these cheques in any of those earlier FIRs. However, he after getting decision of one FIR, lodging another FIR and in this way the Respondent No. 2 misused the process of law for twisting the arms of Applicant as a tool of recovery of amount due. This practice is certainly amounting to misuse the process of law, as such the same cannot be allowed. It becomes a regular practice that multiple post-dated cheques are obtained regarding some monetary obligations and after getting the same dishonoured by depositing in different bank branches, criminal cases are initiated one after another and in this way, the person who has issued the cheques is forced to enter into compromise on the conditions, which are sometimes unbearable for him. It is my considered opinion that the practice of using the provision of Section 489-F by some of the businessmen as the tool of recovery should be put an end. If it is proved that at the time of lodging of earlier FIR, the complainant was already having a bounced cheque of the same party and he avoided to lodge FIR with intention to use it at some future stage as a tool of recovery, then subsequent FIR should not be allowed and if the subsequent FIR is lodged then it is the duty of the concerned Judicial Magistrate to nip the evil in the bud by using the provision of Section 63, Cr.PC. However, those dishonoured cheques may still be used for the purpose of a suit for recovery as per law.
8.Since the mala fide of respondent No.1 is very much clear, therefore, the ultimate outcome of the above discussion is that the instant criminal miscellaneous applications are allowed and the FIR No.161/2017 of Police Station Mithadar, Karachi and FIR No.113/2017 of Police Station New Town, Karachi are hereby quashed.
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