Section 489-F PPC finds mentioned the word ‘dishonestly’ and not the ‘fraudulently’ which is somewhat different concept yet both sometime are intermingled.
Section 23 of PPC further defines that "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully.
A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. ‘Fraudulently’ on the other side means an intention to defraud.
Dishonesty is an acquisitive offence and in our law is a ‘state of mind’ (mens rea) and the fact that doer of an act knew of his act being dishonest (subjective test) is to be determined by the court from ‘course of action’ adopted for such act (objective test), depending upon the circumstances and evidence of the parties; therefore, it rests upon the Court to consider under which circumstances, the cheque was issued and what was the intention of the person issuing it but here in this case the prosecution has not only failed to prove the dishonesty on the part of the accused in issuance of cheque for repayment of a loan or fulfillment of any obligation but also failed to prove the transaction between the parties for which cheque was issued which facts adversely affect the prosecution case.
Every transaction where a cheque is dishonoured may not constitute an offence, rather three elements are required for the applicability of section 489-F PPC
(i) cheque must be issued with dishonest intention or dishonestly
(ii) it should be for repayment of a loan or
(iii) to fulfill an obligation. Obligation has also a close touch with loan and above three ingredients are not available in this case.
It is trite that to constitute an offence under this section dishonesty on the part of the payer is a condition precedent in issuance of a cheque towards repayment of loan or to fulfill an obligation. Two terms, obligation and dishonesty are required to be thrashed for its reference to the situation of this case. The popular meaning of the term “obligation” is a duty to do or not to do something. In its legal sense, obligation is a civil law concept. An obligation can be created voluntarily, such as one arising from a contract, quasi-contract, or unilateral promise. An obligation can also be created involuntarily, such as an obligation arising from torts or a statute. An obligation binds together two or more determinate persons. Therefore, the legal meaning of an obligation does not only denote a duty, but also denotes a correlative right; one party has an obligation means another party has a correlative right. The person or entity who was liable for the obligation is called obligor; the person or entity who holds the correlative right to an obligation is called obligee. Some common uses of the term "obligation" in a legal sense include:-
i. The term "contractual obligation" refers to the duty to pay or perform some certain acts created by a contract or an agreement.
ii. "Conditional obligation" means the duty to pay or perform certain acts depending on the happening of an event.
iii. "Current obligation" means the obligation that is currently enforceable.
iv. "Heritable obligation" means a legal obligation or the related right is not ended by the death of the person who was liable for the obligation or who held the right. The heritable obligation stipulates that an obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.
The legal sense of obligation from early Roman law claims that obligations are the bond of vinculum juris, or legal necessity, between at least two individuals or parties. In the original sense, the idea of obligation referred only to the responsibility to pay any money outlined in the terms of specific written documents. Obligation is the moral or legal duty that requires an individual to perform, as well as the potential penalties for the failure to perform. An obligation is also a duty to do what is imposed by a contract, promise, or law. 11. Dishonesty means a state of mind where an act is committed by a person with the intention of causing wrongful gain for himself, herself or another, or of causing wrongful loss to any other person. Dishonesty is an acquisitive offence but a crucial question is palpitated as to whether dishonesty is a “state of mind” or it is a “course of action”.
It is not essential for a person to admit that they acted in a way that they knew to be dishonest; it was probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was wrong.
Crl. Appeal-Against Acquittal-PPC
32-19
MAQBOOL AHMED VS THE STATE ETC.
Mr. Justice Muhammad Amjad Rafiq
08-02-2023
2023 LHC 580
 as well as a 'course of action' professed through subjective and objective test.){kind=link}
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