' TARIQ SHAMIM, J.--- Through this constitutional petition the petitioner seeks quashment of F.I.R.
No,387 of 2003, dated 7-10-2003 for offences under section 489-F, P.P.C. Registered at Police Station City Burewala District Vehari.
2. The brief facts of the prosecution case as stated in the F.I.R. "are that the petitioner on 13-4-2002 borrowed Rs,4,00,000' from the complainant for the purpose of business but did not return the same and on insistence of the complainant for the return of the said amount the petitioner gave a cheque bearing No,290465, dated 15-6-2002 for an amount of Rs,2,00,000 drawn on the Bank of Punjab Vehari Branch and another cheque for the same amount bearing No,290466, dated 30-8- 2002 drawn on the same Bank which on presentation were dishonoured by the Bank. Consequently the afore mentioned F.I.R. Was registered under section 489-F. P.P.C. Against the petitioner for dishonestly issuing the said cheques.
3. Learned counsel for the petitioner contended that the entire amount in question had been paid by the petitioner to the complainant. In this connection he referred to cheque No,655627 dated 2- 6-2003 for Rs,50,000 and cheque No,655635 dated 13-6-2003 for an amount of Rs,58,000 both drawn on M.C.B. And for the remaining amount reliance has been placed on two affidavits attached with this petition as Annexures "D" and "E" duly sworn by the witnesses, namely, Rana Muhammad Ashraf and Arshad Ali in whose presence the said amount had been paid back. The learned counsel further contended that a civil suit had been filed by the complainant against the petitioner under Order XXXVII, rule 11, C.P.C. For the recovery of Rs,5,60,000 and since the matter was essentially one of the civil nature and the same having been agitated before a Court of competent jurisdiction, the F.I.R. In question was liable to be quashed. Learned counsel has sought quashment also on the ground that when the cheques in question had been issued section 489-F, P.P.C. Was not inserted in the Statute and being a criminal provision was not retrospective in effect and as such no offence had been committed by the petitioner.
4. On the other hand learned Additional Advocate-General assisted by the learned counsel for respondent No,3 has contended that though the cheques in question were issued prior to the insertion of section 489-F in the Pakistan Penal Code, 1860 through Criminal Law Amendment Ordinance, 2002 promulgated on 25-10-2002 (Ordinance No,LXXXV of 2002) but the offence was committed at the time when the cheques were presented and dishonoured by the Bank. Therefore, the date of occurrence would be reckoned from the date the cheques were bounced by the bank and not from the date of issuance of the same; that no such plea was taken by the petitioner in the instant writ petition, hence arguments in respect thereof cannot be advanced; that pendency of the civil suit between the parties cannot be made a basis for quashing criminal proceedings which are two independent remedies available to the complainant. As regards the affidavits sworn by Muhammad Ashraf and Arshad Ali (Annexures "D" and "E") in order to prove that the amount in question had been returned to the complainant by the petitioner, the learned counsel for the respondent contended that the same would entail factual inquiry which cannot be undertaken in the constitutional jurisdiction.
5. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
6. The petitioner issued cheque No,290465 for an amount of Rs,2,00,000 on 15-6-2002 and another cheque bearing No,290466 for another amount of Rs,2,00,000 on 30-8-2002 in favour of the complainant. Section 489-F was inserted in the Pakistan Penal Code, 1860 through Criminal Law Amendment Ordinance, 2002 (Ordinance No,LXXXV of 2002) on 25-10-2002, therefore, the cheques in question had been issued prior to the insertion of section 489-F in the Statute. But issuance of a cheque by itself is not an offence. It is only after the said cheque is presented to the Bank and on its being dishonoured that makes the act of an offence of issuing the cheque dishonestly. The most important ingredient of an offence under section 489-F, P.P.C. Being issuance of a cheque dishonestly is attracted only when the cheque is bounced by the bank. Section 489-F, P.P.C. Is reproduced hereunder for reference:-- 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 cheque would be honoured and that the bank was at fault in not honouring the cheque."
' Dishonestly has been defined in section 24, P.P.C. Which reads as under:-- "Dishonestly".--- 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".
Thus, dishonesty of a wrong doer would materialize only at the time when the cheque is bounced by the Bank and only then an offence can be said to have been committed. Therefore, time of occurrence would be reckoned from the date when the cheque was dishonoured by the bank and not from the date the said cheque was issued. The argument of the learned counsel for the petitioner that section 489-F, P.P.C. Cannot be applied with retrospective effect is therefore, misconceived as the offence in the instant case was constituted when the cheques were presented to the Bank and were dishonoured on 28-11-2002 and 21-4-2003 which of course was after the insertion of section 489-F in the Pakistan Penal Code. The dictum laid down by this Court in Qambar Ali and others v. The State and others 2004 YLR 2689 and Munir Ahmad v. The State 2004 YLR 2748 is fully attracted to the circumstances of this case wherein it has been held that the cause of action would accrue in favour of the complainant when cheques were presented and dishonoured by the Bank and not at the time the same were issued as the date of issuance is immaterial in such cases.
7 . Further I am in agreement with the learned counsel for the respondents that the aforesaid ground having not been taken in the pleadings by the petitioner cannot be urged at the argument stage. Reference is made to Usman Enterprises v. Collector of Customs, Central Excise, Quetta and another 1995 CLC 1137.
8. The plea of the learned counsel that during pendency of the civil suit criminal proceedings cannot be initiated is also misconceived as the civil suit has been filed only for the recovery of the amount in question the same being the appropriate remedy in respect thereof and with regard to the commission of an offence criminal proceedings have been initiated. Hence both the remedies can be availed by a party simultaneously. I am fortified in my view by the judgments in the above quoted Munir Ahmad's case 2004 YLR 2748 and Mst. Naseem Bibi v. Sub-Registrar/M.I.C., Lahore and others 2000 YLR 47 wherein it has been held that civil as well as criminal proceedings can continue side by side. The argument of the learned counsel that witnesses have sworn affidavits in whose presence the disputed amount has been returned involves resolution of a, factual controversy which exercise cannot be undertaken in the constitutional jurisdiction by this Court.
The petitioner has not been able to make out a case for the quashment of the F.I.R. Therefore, for reasons stated above, this petition being without merit is dismissed.