' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1415 of 2002 directed against the judgment, dated 4-7-2002 passed by learned Judicial Magistrate, whereby he acquitted the respondents.
2. Facts of the instant case are that respondents Nos. 1 and 2 committed criminal breach of trust by cheating and handing over a forged cheque to the appellant for which a case F.I.R. No.511 of 1998 was registered under sections 420/406, 468 and 506, P.P.C. After thorough investigation the respondents/accused were challaned.
3. Learned trial Court after going through the evidence produced by both the parties and hearing the arguments advanced by both the parties acquitted the respondents. Hence this appeal.
4. Learned counsel for the appellant in support of this appeal submits that impugned order passed by the learned trial Court is illegal, that there is sufficient material to connect the respondents with the commission of crime i.e. Committing forgery by giving a fake cheque which was dishonured. He has referred to the statement of the complainant/appellant and also to Muhammad Saeed. He submits that in fact respondents have played a fraud with the appellant and they should be convicted under section 420, P.P.C. Etc.
5. On the other hand learned counsel for the complainant submits that no case under sections 420/406, P.P.C. Is made out. He has relied upon PLD 1963 (W.P.) Karachi 54 titled as Saeed ud Din Qureshi v. The State. He submits that learned trial Court was right in acquitting the respondents and that no illegality has been committed by them. Learned State counsel supports the contention raised by the learned counsel for the appellant.
6. I have heard the learned counsel for the parties. Facts of the case are that respondent Muhammad Saleem, as alleged in the F.I.R., purchased the steel/iron from Abdul Razzaq appellant and gave him a cheque of Rs.76,386 but the said cheque was found to be based on fraud.
Complainant has appeared before the learned trial Court as P.W.1. He never produced the cheque or slip issued by the Bank stating therein that the amount is not there and in fact the words which are given in the slipreferred to drawer, that slip was also not produced either during the time of investigation or before the learned trial Court by the complainant. Learned counsel for the appellant has very much laid stress on the statement of Muhammad Saeed an employee of Bank. I have gone through his statement. He never stated in his examination-in-chief that he was an employee of said branch of the Bank on the said date when the cheque was produced, that he even did not produce the slip which is usually issued by the Bank when the cheque is dishonoured.
He has also stated that he was told by the Manager of the Bank that on 18-8-1998 when the cheque was produced, the requisite amount was not there so the cheque was returned and the said statement of account bears the signature of Manager of the Bank. If the preliminary evidence in the shape of Manager of the Bank was available, he should have been produced by the prosecution. There is nothing on the record. Neither the Manager of Bank nor any employee of the Bank were present at the time of evidence of Muhammad Saeed. He was retired or had left the country and there was no probability of his return in the near future. Such type of evidence is not admissible under the Evidence Act. Same can only be admissible if the preliminary evidence is not available and some body appeared in the witness box to state the same. He also stated that he was given mark 'A' by a police official. He also stated that after checking Bank record he told the, date 15-8-1993 but that record is not available neither he had brought token register.
It may also be mentioned here that Abdul Razzaq appellant has also filed a civil suit under Order XXXVII, C.P.C. For the recovery of Rs.76683 the cost of iron which was purchased by Muhammad Saleem respondent. This Exh. D.1, when the statement of Abdul Razzaq is D.2., then certified copy of the order of Additional District Judge, Lahore Exh.D.3. According to the said judgment the finding of the Court was that the said suit was dismissed. There is no merit in this appeal and the same is dismissed.