1. ' ARSHAD NOOR KHAN, J.---By this application under section 561-A, Cr.P.C. The applicant seeks quashment of the order dated 29-5-2007 passed by the learned IV-Judicial Magistrate, Karachi- South, which was dismissed by the learned Judicial Magistrate.
2. ' The facts leading rise to the present application in brief, are that the F.I.R. Bearing No,177 of 2007 dated 28-3-2007 was lodged by the complainant Muhammad Jamshed Akram son of Muhammad Akram at P.S. Preedy, Saddar Town, stating therein that he is an employee as Manager in Global Trading Company. His company has given Rs,936,875 to the applicant Kashif Khan in connection with his business and he issued a cheque bearing No,CD0511715 amounting to Rs,936,875 dated 6- 3-2007 drawn on Bank Al-Falah, M.A. Jinnah Road, Karachi which on presentation was bounced on 19-3-2007 at 12-00 noon. The complainant demanded return of his money but the applicant on one or the other pretext, avoided to return the money as such the case as stated above under section 489-F, P.P.C. Was registered against the applicant.
3. ' After registration of the F.I.R. And inquiry, challan against the present applicant was sent in the Court of learned Judicial Magistrate where initially, the bail application filed on behalf of the applicant, was refused and the bail application filed before the learned Sessions Judge, Karachi South, was met with same fate vide order dated 1-6-2007 and finally he succeeded in getting bail by this Court.
4. ' After grant of bail to him, the applicant filed application under sections 249-A/249, Cr.P.C. Before the learned Judicial Magistrate seeking therein his acquittal on the ground that the dispute seems to be a dispute of civil nature and that the criminal case has not been registered by an authorized person. The learned trial Court after hearing of learned counsel for the parties did not concede the arguments advanced by the learned counsel for the applicant and rejected the same, hence, the present application for quashment of the order passed by the learned Judicial Magistrate thereby rejecting the application under sections 249-A/249, Cr.P.C. Filed by the applicant.
5. ' I have heard Mr. S.M.A. Mahmood, Advocate for the applicant and Ms. Afsheen Aman, Advocate appearing on behalf of the State.
6. ' Mr. S.M.A. Mahmood, learned counsel for the applicant has vehemently contended that in view of section 44, Cr.P.C. The complainant Muhammad Jamshed Akram being an employee of Global Trading Co. Was not competent person to lodge F.I.R. Against the applicant, and the owner of the company has not come forward for registration of the F.I.R. As such the present complainant was not the beneficiary of the cheque issued in favour of the firm. He further contended that dispute in between the parties seems to be a dispute of civil nature for which criminal liability could not be imposed on the applicant, which fact is sufficient to quash the order passed by the learned lower Court. He finally contended that there is no probability of conviction of the applicant as such the applicant could not be finally convicted by the learned trial Court and entire attempt to prosecute him is an attempt in futility as such the impugned order passed by the learned Judicial Magistrate may be quashed.
7. ' Ms. Afsheen Aman, Advocate for the State while, refuting the contention advanced by the learned counsel for the applicant, has vehemently contended that the quashment application itself is not maintainable as the applicant did not approach to the learned Sessions Court against the order impugned herein. She further contended that issuance of cheque by the applicant and its non- encashment by the bank fully establishes the case under section 489-F, P.P.C. And that in view of section 11, P.P.C. The term 'person' also includes firm and company as such there was no technicality in registration of the F.I.R. By the complainant and that still the charge is to be framed against the applicant and he has ample opportunities to rebut the case of the prosecution by cross-examining the material witnesses and by adducing the independent evidence and at this stage of the proceedings, the proceeding could not be quashed.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire material available before me, as well as the relevant law on the subject.
9. The learned counsel for the applicant has vehemently relied upon the section 44, Cr.P.C. To contend that the complainant is not the beneficiary of the cheque as such the F.I.R. Lodged by him is against the provision of section 44, Cr.P.C. To resolve the controversy, it will be appropriate to reproduce hereinbelow, the section 44(1), Cr.P.C.
10. "Public to give information of certain offences.---(1) Every person, aware of the commission of or of the intention of any other person to commit any offence punishable under any of the following sections of the Pakistan Penal Code, namely, 121, 121-A, 122, 123, 123-A, 124, 124-A, 125, 126, 130, 143, 144, 145, 147, 148, 153-A, 161, 162, 163, 164, 165, 168, 170, 231, 232, 255, 302, 303, 304, 304-A, 364-A, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459, 460 and 489-A, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate (Justice of the Peace) or police officer of such commission or intention."
11. ' A perusal of section 44(1), ibid, shows that every person aware of the commission or of the intention of any other person to commit any offence punishable under any of the section stated therein may lodge the F.I.R. Learned counsel for the applicant has vehemently relied upon the section 489-A, mentioned in the aforesaid section and has contended that section 489-F has been excluded from section 44, Cr.P.C. As such the complainant is not an authorized person to lodge the F.I.R. The arguments advanced by the learned counsel, in my humble opinion, seems to be contrary to section 44, Cr.P.C. No doubt section 44, Cr.P.C. Includes section 489-A, P.P.C. To take cognizance by the nearest Magistrate or police officer but the said section 489-A, P.P.C. Was substituted in P.P.C. By insertion of Law Reforms Ordinance, 1972 as such it is evident that section 489-A, ,P.P.C., was amended in P.P.C. By way of Law Reforms Ordinance, 1972 whereas section 489-F, P.P.C. Has admittedly been inserted in section 489, P.P.C. By Ordinance LXXV of 2002 on 25-10-2002. It is therefore, evident that section 489-F, P.P.C. Has been made part and parcel of section 489, P.P.C. On 25-10-2002 by Ordinance LXXV of 2002 and section 489-A, P.P.C. Has been inserted by Law Reforms Ordinance, 1972 as such it does not appeal to the mind of a prudent man that exclusion of section 489-F, P.P.C. From section 44, Cr.P.C. Shows the intention of law makers to exclude it from the ambit of section 44, Cr.P.C. So as to give cognizance to any person having the knowledge of commission of criminal offence. The contention advanced by the learned counsel for the applicant, in my humble opinion, is neither persuasive nor attractive so as to observed that section 489-F, P.P.C. Has been excluded from section 44, Cr.P.C. The learned counsel for the applicant has also vehemently contended that the complainant is not the beneficiary of the cheque and the F.I.R. Has been lodged by an incompetent person. The learned counsel for the State has laid great stress on the definition of the term 'person', defined in section 11, P.P.C. The term 'person' contained in section 11, P.P.C.
12. Includes any company or association or body or person whether incorporated or not. The said definition of the person fully covers the term company, association, body or person who can register the offence, if it is in knowledge of the same as such, at present, it could not be said that the complainant is not competent person to lodge the F.I.R., as it has not been disputed with certainty that the complainant is neither employee of Global Trading Co. Nor he is Manager of the said trading Co. As such he being manager of the Co. Was authorized to lodge F.I.R. In view of section 11, P.P.C.
13. ' The learned counsel for the applicant has vehemently contended that the dispute in between the parties seems to be a dispute of civil nature as such the complainant party should approach to the civil Court for redressal of their grievances, if any and a criminal case could not be registered. The arguments advanced by the learned counsel for the applicant, in my humble opinion, seems to be devoid of any force as by virtue of section 489-F, P.P.C. An intentional issuance of bogus cheque has been declared as criminal offence and even otherwise in case, if the party against whom any action has been taken and the said party have both the remedies viz. Civil and criminal, he can resort both the proceedings simultaneously against the accused and it could not be said that the accused could not be prosecuted in criminal action where the subject-matter wholly or partly is of civil nature, because the nature of the proceedings in criminal administration of justice are to punish the wrong doer whereas the remedy provided in civil proceedings is to recover the things from the accused.
14. ' The learned lower Court has rightly observed that still the evidence of the material witnesses is to be led by the complainant party and the applicant has ample opportunities to rebut the case of the complainant and quashment of the order passed by the learned Judicial Magistrate could not be ordered by way of proceeding under section 561-A, Cr.P.C. Even 'otherwise admittedly the applicant has challenged the order dated 29-5-2007 passed by the learned IV-Judicial Magistrate, Karachi-South, whereby the application under sections 249-A/249, Cr.P.C. Was rejected and the applicant has efficacious remedy to challenge the said order passed by the learned Judicial Magistrate before the learned Sessions Judge in revision under section 435, Cr.P.C. On this score also the present application for quashment is not maintainable.
15. ' For all the aforesaid reasons and circumstances, I do not find it a fit case to quash the proceedings pending before the learned trial Court. The application has, therefore, no merit and the same is hereby dismissed.