' ABDUR RAHMAN FARUQ PIRZADA, J.---By this application the applicant has impugned the order dated 6-3-2008, passed by learned Civil Judge and Judicial Magistrate-X, Hyderabad, by which he did not agree with the summary report submitted by the Investigating Officer with the recommendation for disposal of case under B' class, and the learned Magistrate directed the concerned Investigating Officer to submit the charge sheet under section 173, Cr.P.C. Before the Court having jurisdiction.
2. As briefly stated, the facts of the case are that respondent/applicant Deedar Hussain Shah had filed an application under sections 22-A and 22-B. Cr.P.C. Before the learned Sessions Judge Hyderabad, which application was transferred to learned VII Additional Sessions Judge Hyderabad, who passed the order dated 21-10-2006, thereby issuing direction to S.H.O. Police Station Hussainabad to record the statement of applicant Deedar Hussain Shah and if cognizable offence was made out, then to register his F.I.R. It appears that initially the statement of respondent/complainant Deedar Hussain Shah was not recorded by the S H.0, on which he once again approached the Court of learned VIIth Additional Sessions Judge Hyderabad, and consequently the order dated 6-12 2006 was passed, thereby directing the T.P.O of concerned police station to take action against the concerned S.H.O. And further directing him to record the statement of the respondent/compliant and to register the F.I.R. Against the proposed accused if the cognizable offence was made out. Thereafter the applicant/accused Syed Hassan Raza, being aggrieved by both the said orders dated 21-10-2006 and 6-12-2006, respectively passed by VIIth Additional Sessions Judge Hyderabad, filed the Cr. Revision Application No, S-43 of 2007 before this Court, and the same revision was dismissed by this Court vide order dated 5-6-2007.
Consequently, the F.I.R. Was registered at Police Station Hussainabad Hyderabad on 6-6-2007.
3. According to F.I.R. The complainant was Manager in Sirius Construction Company. He had purchased pipes for drainage line on behalf of the company while bearing the expenses from his own pocket. Subsequently, the complainant demanded the amount so spent by him from the accused but he in turn issued threats to him. The company/accused paid certain amount in cash to the complainant, and with regard to remaining outstanding amount, a cheque bearing No,0655123 dated 1-10-2006 for the amount of Rs, 1,97,000 was issued by accused/company for Allied Bank Saddar Branch Hyderabad, however, the same cheque was allegedly dishonoured, as such the F.I.R. Was registered for offences under sections 489-F, 504 and 506 (2) P P C
4. Learned counsel for applicant/accused has submitted that the police, after proper investigation had submitted the summery report with the recommendation that the case may be disposed of under 'B' class, but the learned Judicial Magistrate did not apply his proper and judicious mind to the merits of the case and passed the impugned order. He has contended that prima facie the case under section 489-F P.P.C. Was not made out, since, dishonest intention is important ingredient of section 489-F P.P.C, which is lacking in the case. He has submitted that in fact post- dated cheque was issued by accused in the name of complainant, since same amount was outstanding, however, prior to the disannulment of the cheque the amount in question was already paid and still the settlement of amount between the parties was to be made. He has contended that the applicant is not beneficiary of the said amount as it was the Sirius Construction Company, which was the affected party in the case. In the circumstances, he has argued that, section 489-F, P.P.C. Was wrongly applied in the case, and as such the impugned order suffers from infirmity under the law. He has also submitted that the learned Judicial Magistrate, who passed the impugned order, did not have the jurisdiction to pass any such order since the jurisdiction had been changed to the Judicial Magistrate-I Hyderabad by way of notification. He has pointed out that this fact is clear from the impugned order itself, wherein the concerned Investigating Officer has been directed to submit the charge sheet before the Court having jurisdiction viz. Civil Judge and Judicial Magistrate- I Hyderabad. He has also submitted that the respondent/complainant has malafidely filed this case and previously also two cases were filed by respondent party against the present applicant. Learned counsel for the applicant further submitted that a civil suit being F.C. Suit No, 117 of 2007 for cancellation of the said cheque was filed by him before the learned Senior Civil Judge Hyderabad on 30-4-2007, which suit is pending.
5. In rebuttal, learned counsel for respondent/complainant has submitted that in fact the applicant/accused had dishonestly issued the cheque, with a clear cut intention to defraud the respondent/complainant knowing fully well that bogus cheque was being issued and the same was bound to be dishonoured. According to him, the total amount of Rs,4,97,000 was spent by the complainant for purchase of pipes, from his own pocket, in view of certain urgency, and later the accused paid him Rs,3,00,000 and with dishonest intention issued him the cheque for the remaining amount of Rs,1,97,000. He has submitted that the police too, was in collusion with the accused from the very beginning as such the F.I.R. Was not being registered at police station, and for that matter he had to take efforts by way of filing an application under sections 22-A and 22-B, Cr.P.C. Before the learned Sessions Judge Hyderabad, as a result of which the order was passed for registration of his F.I.R. He has submitted that even after the initial order dated 21-10-2006 passed by learned VIIth Additional Sessions Judge Hyderabad for registration of F.I.R. Still the S.H.O. Declined to register the F.I.R, whereafter he had to approach the learned Court of VIIth Additional Sessions Judge Hyderabad once again, and consequently the subsequent order dated 6-12-2007 was passed. He has submitted that the fact that revision application filed by the applicant before this Court was dismissed, would strongly suggest that the case of the respondent/complainant was genuine, and it was at the behest of accused that the police had been malafidely avoiding to lodge the F.I.R. It has been submitted that dishonest intention of accused is apparent from the fact that on 4-10-2006 accused Syed Hassan Raza wrote a letter to the Branch Manager Allied Bank Saddar Branch Hyderabad, for stopping the payment against the said cheque, and stating that the cheque was cancelled on the ground that the payment to complainant Deedar Hussain Shah had already been made in cash; but subsequently by a letter dated 15-2-2007 by accused addressed to complainant, he requested the complainant to get the payment of above cheque received from the bank, since previously an amount of Rs,3,00,000 had already been paid to complainant on 10- 7-2006 and with regard to the encashment of cheque he had cautioned the bank for stoppage of payment due to non-reconciliation of the account provided by the complainant. In view of the attending facts, it is clear that the accused had made a false statement vide his letter to the bank, to the effect that the payment had already been made to the complainant, although later on he said something contrary. Furthermore, by way of the letter dated 26-4-2007 by Allied Bank Limited addressed to the accused, it was stated that the cheque for Rs,1,97,000 was still stopped for payment as per instruction of accused. It has also been argued that the learned Magistrate passing the impugned order was competent under the law to pass the impugned order since the F.I.R. Had been submitted in the same Court, and no illegality was committed by the impugned order.
6. Learned Assistant A.G has supported the contentions of learned counsel for respondent/complainant, while submitting that prima facie a case under section 489-F, P.P.C. Has been made out, as the cheque was dishonoured and the same cheque had been issued by the accused with dishonest intention. Learned Assistant A.G has also submitted that the learned Magistrate who passed the impugned order, was competent under the law, and he has referred to the provisions of section 173 r/w sections 190 and 191, Cr.P.C.
7. I have considered the submissions made by both the learned counsel for the parties respectively, as well as the learned Assistant A.G.
8. The fact is not disputed that the cheque for the amount of Rs,1,97,000 was issued by accused in the name of complainant, and the same cheque was subsequently dishonoured. However, the only question which is involved in the case is that whether the dishonest intention is made out in the circumstances of the case. For the sake of convenience, the contents of section 489-F, P.P.C. Are reproduced as under:-- "S.489-F, Dishonestly issuing a cheque.---Whoever dishonestly issues a cheque towards re- payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden or proof shall rest on him, that he had made arrangements with his Bank to ensure that cheque would be honoured and that the bank was at fault in not honoring the cheque."
9. In order to resolve as to whether the cheque was issued dishonestly, it would be significant to refer to the fact that the accused vide his letter dated 4-10-2006 had instructed the Branch Manager Allied Bank Saddar Branch, Hyderabad, to stop payment to accused for the said cheque, as the payment had already been made to the complainant in cash. However, subsequently, the accused took a contradictory stand when he wrote a letter on 15-2-2007 to complainant while acknowledging that the amount of Rs,1,97,000 was still outstanding, and he requested A the complainant to get the payment of the said cheque from the Bank received. It may be pertinent to note that once again the complainant was put at disadvantage when the Allied Bank Limited informed the accused vide letter dated 26-4-2007 that the payment of said cheque to complainant was still stopped, as per instruction of accused. The above contradictory stand taken by the accused while dealing with the complainant may prima facie make out a case under section 489-F, P. P. C
10. So far as the question of legality of the impugned order is concerned, under the provisions of section 173, Cr.P.C. The learned Magistrate while taking cognizance of the case was competent to apply his judicious mind to the summary report and then to pass the order. In the impugned order it has been observed that from the perusal or police papers it appeared that the investigating team had disposed of the instant case under 'B' (false) class on account of statements of defence witnesses, however, the record showed that the accused had given a cheque of Rs,1,97,000 bearing No,0655123 dated 1-10-2006 of Allied Bank Limited, which was bounced for want of arrangement as is clear from the bank memorandum dated 2-10-2006 and 4-10-2006. It has also been observed in the impugned order that the accused had not denied his signature and the cheque in question issued to complainant and the same prima facie evidence could not be brushed off. The learned Magistrate has placed reliance upon the case of Farooq Sumar and others v. The State reported in 2005 Criminal Law Judgments-219 Karachi in support of his order.
11. In view of the foregoing discussion, I am of the view that no illegality was committed by the learned Magistrate while passing the impugned order dated 6-3-2008. Accordingly, this application is dismissed.
12. It may be neediess io say that the above observations are with regard to the case being prima facie made out for the purpose of submitting the final report under section 173, Cr.P.C. Before the competent Court, and the above observations obviously shall 'not influence the actual trial proceedings before the competent Court, where the case shall be finally decided strictly on merits.