' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No.392 of 2000 registered on 26-12-2002 under sections 489-F, P.P.C. At P.S. City Sahiwal at the instance of respondent No.3.
2. The brief facts as stated in the F.I.R. Are that the petitioner, who was a Car Dealer had obtained Rs.5,00,000 from respondent No.3 with the promise to sell Corolla Car Model 1995-96, but he failed to hand over any car to the petitioner and used to put off the matter on one pretext or the other.
When was contacted by respondent No.3, the petitioner issued two cheques amounting to Rs.3,00,000 for different dates and remaining amount of Rs.2,00,000 was promised to be paid in cash. The cheques were presented in the Bank and dishonoured due to insufficiency of amount, hence the impugned F.I.R. Was got registered.
3. Learned counsel for the petitioner contends that section 489-F, P.P.C. Has been wrongly applied by the police in this case as the same was introduced in the Pakistan Penal Code on 25-10-2002 while cheques were allegedly issued before the said date, hence this offence is not attracted. Adds that the petitioner has also filed a civil suit for cancellation of the same cheques in the Civil Court and registration of the criminal case is with mala fide intention and F.I.R. May be quashed.
4. I have heard the learned counsel for the petitioner and also perused the contents of the writ petition as well as the documents attached therewith.
5. The allegation against the petitioner is that he had issued two cheques amounting to Rs.3,00,000 for different dates in the name of respondent No.3/complainant which were admittedly dishonoured by the Bank on presentation due to insufficiency of amount in the said account.
6. The main ground taken by the learned counsel for quashment of the F.I.R. Is that offence under section 489-F, P.P.C. Was inserted in the Code on 25-10-2002 while the cheques were issued prior to promulgation of the same and the said offence cannot take effect retrospectively. It is not denied that when the said cheques were presented in the Bank and bounced, offence under section 489-F, P.P.C. Was very much in the field. Section 489-F, P.P.C. Is reproduced here for ready reference:-- "489-F. Dishonestly issuing a cheque:-- ' Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment 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 cheque would be honoured and that the bank was at fault in not honouring the cheque."
A bare perusal of the above provisions reveals that issuance of cheque by a person becomes offence when the same is dishonoured by the Bank on presentation and the burden is on the accused to prove that he was not at fault in not honouring the same. The main criteria to prove this offence is that the cheque was issued dishonestly, which of course will come to light when the cheque is bounced on presentation by the Bank. The word "dishonestly" has been defined in section 24, P.P.C. As under:-- "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
I am of the view that in such cases the date of occurrence will reckon from the day when the cheque was bounced as only thereafter the offence is completed. The ground taken by the learned counsel that section 489-F, P.P.C. Cannot be applied with retrospective effect is unfounded and misconceived. The case is still at investigation stage and burden is on the petitioner to prove that he was not at fault in dishonouring of the cheques by the Bank. Thus the F.I.R. Cannot be quashed on this score.
7. The other ground taken for quashment of the F.I.R. Is that petitioner has also filed a suit for cancellation of the cheques, on the basis of which F.I.R. Has been lodged, in the Court of competent jurisdiction alleging that he had not issued the cheques and the same were manoeuvered by the complainant and others after stealing the cheque book of the petitioner. The said civil suit was admittedly filed after registration of the criminal case. The possibility cannot be D ruled out that the petitioner has filed the civil suit to avoid criminal proceedings against him. Even otherwise, now it is well settled that both criminal and civil accused if is guilty of any offence cannot be proceedings can run side by side and the saved from its prosecution merely because the civil proceedings are also pending. It is not denied that the cheques were of the petitioner and mere oral assertion of the petitioner that he had not issued the same but the same were stolen from his office cannot be accepted without recording of evidence, which cannot be taken in writ jurisdiction. The matter requires investigation and the petitioner can produce evidence therein to prove his version, but this Court cannot assume the role of the Investigating Officer as has been held in Brig. Imtiaz Ahmad's case 1994 SCM R 2142.
8. I am also not in agreement with the learned counsel for the petitioner that since the complainant has the remedy under Order XXXVII, rules 1 and 2 of C.P.C., if the Bank dishonours the cheques, therefore, the registration of the present case is with mala fide intention by converting the civil dispute into criminal offence as dishonestly issuance of cheque has also been declared offence by the Statute and both the remedies can be availed simultaneously in such matters. The case of the petitioner does not fall within the parameters laid down by the superior Courts for the quashment of the F.I.Rs.
9. For the foregoing reasons, this writ petition has no merits and is dismissed in limine.