2010 S C M R 806
(a) Penal Code (XLV of 1860)---
----S. 489-F---Dishonouring of cheque--Criminal proceedings, initiation of---Pre-conditions.
If following conditions are fulfilled and proved by prosecution, only then provisions of S.489-F, P.P.C. are attracted:
(i) issuance of cheque;
(ii) such issuance was with dishonest intention;
(iii) the purpose of issuance of cheque should be:
(a) to re-pay a loan; or
(b) to fulfil an obligation (which in a 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 dishonoured.?
(b) Penal Code (XLV of 1860)---
----S. 489-F---Dishonouring of cheque---Valid defence.
Accused can take a valid defence, if he proves that he had made arrangements with his bank to ensure that cheque would be honoured; and that the bank was at fault in dishonouring the cheque. If accused establishes such two facts through tangible evidence and that too after prosecution proves ingredients of offence, then the accused is absolved from punishment.?
(c) Penal Code (XLV of 1860)---
----S. 489-F---Reappraisal of evidence---Dishonouring of cheque---Scope---Steeling of cheque---Insufficient balance---Accused did not dispute his signatures on the cheque in question---Plea raised by accused was that his signed cheque was stolen from his cheque book---Validity---It was against natural conduct that a person would keep blank signed cheque in his cheque book---Defence witness stated that when accused filed application for stopping of payment of cheque in question, at that time accused had only a balance of Rs.300, in his account; in the application to stop payment of cheque, accused did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing---Supreme Court declined to interfere in concurrent findings of courts below resultantly conviction and sentence was maintained---Appeal was dismissed.?
Ch. Muhammad Rafique Warraich, Advocate Supreme Court for Appellant.
Syed Ali Imran Shah, D.P.-G. for the State.
Khalid Aseer Chaudhry, Advocate Supreme Court for the Complainant.
Date of hearing: 15th December, 2009.
2010 S C M R 806
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ
MUHAMMAD SULTAN----Appellant
Versus
THE STATE----Respondent
Criminal Appeal No.233-L of 2009 in Criminal Petition No.546-L of 2009, decided on 15th December, 2009.
(Against the judgment, dated 15-5-2009 of the Lahore High Court, Lahore passed in Criminal Revision No.226 of 2009).
JUDGMENT
RAHMAT HUSSAIN FAFFERI, J.--- On 21-3-2005 at 8-50 a.m. the complainant Noor Muhammad lodged the F.I.R. at Police Station Kotwali, Faisalabad alleging therein that there was a business dealing between him and the appellant for supply of kitchen towel cloths. In pursuance of the said dealing an amount of Rs.33,72,038 was outstanding against the appellant. In order to satisfy the claim the appellant issued a cheques of Rs.25,00,000 dated 26-2-2005 which was presented before the bank but it was dishonoured on 28-2-2005. After investigation the police challaned the appellant in the Court where he was tried and convicted for offence punishable under section 489-F, P.P.C. and sentenced to three years' R.I. and fine of Rs.15000 or in default thereof to suffer imprisonment for one month with benefit of section 382-B, Cr.P.C., vide judgment dated 15-7-2008 of Judicial Magistrate (Section 30, Cr.P.C.), Faisalabad. The appellant preferred an appeal and criminal revision before the Sessions Court and High Court, respectively but the same were dismissed. Therefore, the appellant filed the petition for grant of leave to appeal. The leave was granted on 29-6-2009, hence the present appeal.
2. Section 489-F, P.P.C. reads as under: ---
"Dishonestly issuing a cheque---Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment 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 cheques would be honoured and that the bank was at fault in not honouring the cheques."
A perusal of section 489-F, P.P.C. reveals that the 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 cheques should be:---
(a) to repay a loan; or
(b) to fulfil 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 person to some performance).
(iv) on presentation, the cheques is dishonoured.
However, a valid defence can be taken by the accused, if he proves that: ---
(i) he had made arrange meats with his bank to ensure that the cheques would be honoured; and
(ii) that the bank was at fault in dishonoring the cheque.?
If the accused establishes the above two facts through tangible evidence and that too after the prosecution proves the ingredients of the offence then he would be absolved from the punishment.
3. The learned counsel for the appellant has argued that the appellant's cheques book was stolen, therefore, the complainant himself filled in the cheques of Rs.2,5,00,000 but on 26-1-2005 one month before its presentation the appellant moved an application before the bank for stopping the said cheques. He has further stated that the stand of the appellant has been supported by the employee of the bank, who was examined as D.W.1.
4. Conversely, the learned counsel for the complainant has stated that the appellant had issued the cheque with his signature; that the appellant has not denied the signature on the cheque; that a contrary stand has been taken by the appellant in his statement recorded under section 342, Cr.P.C. than the above stand; that the case has been fully proved against the appellant, therefore, the concurrent findings of Courts below do not require any interference by this Court. The learned DPG has supported the arguments of learned counsel for the complainant.
5. Having heard the learned counsel and perusing the record of the case, we find that there was business transaction between the complainant and appellant. Prosecution alleged that in order to satisfy the claim of the complainant the appellant issued the cheque. Such fact has been proved from the evidence of P.Ws. Without touching the factual aspect of the case, the learned counsel for the appellant has simply argued that the appellant's cheques book was stolen and the complainant filled the cheque. Such plea has not been supported by his own statement under section 342, Cr.P.C. In response to a query, the learned counsel for the appellant has stated that the appellant kept the signed cheque which was stolen and used by the complainant. Thus the appellant has not disputed the signature on the cheques in question. It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. Furthermore, D.W.1 has stated that on 26-1-2005 an application was filed by the appellant for stopping the payment of the cheque and that at that time the balance in the account of the appellant was Rs.300 only. We have perused the said application from which we find that the appellant did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing. It appears that balance in the account of the appellant was Rs.300 only at the time when the application was moved as such it does not appeal the common sense that the appellant would request the bank to stop the transaction when there was meagre amount lying in the account.
6. After considering the material available on record, we are of the considered view that the concurrent findings of the Courts below do not call for interference. The appeal has no merits, therefore, the same is dismissed.
M.H./M-10/SC?
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