1. ' SYED ZAKIR HUSSAIN, J.---This Criminal Acquittal Appeal has been filed against the Judgment dated 21-6-2010, of the learned Civil Judge and Judicial Magistrate-I, Hyderabad, in Criminal Case No,11 of 2010, pertaining to the F.I.R. No,234 of 2009 of Police Station City, Hyderabad, for the offence under section 489-F, P.P.C., whereby learned Judge acquitted the respondent No,1/accused Syed Khalid Ali. The appellant has prayed for, setting aside the said judgment and convict the respondent No,1, on the facts and grounds of the appeal.
2. ' Necessary facts are that the police registered the F.I.R. On ,the report of one Malak Safdar Ali, who is P.R:O. In Dawlance Company, to the effect that respondent No,1/accused purchased several articles of his company and against the payment of such articles he issued two alleged cheques of each Rs,10,79,343 and Rs,7,800 respectively, which were dishonoured by Bank, due to account closure, and therefore, the police having registered the aforesaid F.I.R. For the offence under section 489-F, P.P.C. Investigated the same, and challaned the respondent No,1/accused to face the trial for the aforesaid charge, which ended in pronouncement of the impugned judgment as stated above.
3. ' I have heard Mr. Tahir Nisar Rajput, Advocate for appellant and perused the record as well, minutely and carefully, and by its short order dated 2-8-2010, the court dismissed the appeal in limine, for the reasons to be recorded later on accordingly.
4. ' At trial the prosecution examined as many as four witnesses before closing its side. The learned trial Court examined the respondent No, 1/accused under section 342, Cr.P.C.
5. The complainant and his witnesses supported the story as to issuance of the cheques and of their being left unencashed for want of account, which had already stood closed and left un-operative for quite some time. The witness from the Bank, supported position that the account of the cheques, was inoperative, and closed already. There is no evidence led by the complainant party to show business transaction creating lien of the amounts mentioned in the cheques to justify issuance of the cheques, which is already denied by the respondent No,1/accused, and in absence of proof of such transaction or justification, the accused can hardly be held liable to pay such dues, and since the element of the business transaction is the root-cause of issuance of cheques, the same must have come in limelight as pre-requisite condition for holding the issuer (of the dishonoured cheques).
6. The word 'dishonestly' used in section 489-F P.P.C., requires existence of mens rea to commit fraud by issuing a cheque.. Mere issuance of cheque and its becoming dishonoured later, being actus reus, would not be able to attract the provisions of section 489-F, P.P.C. Simply for want of presence of element of 'dishonesty' in the matter: In other words, in absence of 'dishonesty' in issuance of such cheque, the prime ingredient of the offence shall not stand satisfied and there will be no offence of the aforesaid section of law.
7. It is necessary to point out that a cheque being mode of payment must appear to have been issued against consideration of business transaction or any instant dealing of the date and time thereof, showing that the issuer is liable to pay the amount for which, he has issued such cheque, which when turned dishonoured, will make him 'guilty' of the aforesaid nature. In a matter of deciding whether or not, there appears a dishonest intention in issuance of cheque(s), the court should take notice of the facts culminating in issuance of such cheque(s). If the issuance of such cheque is backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal accountability would prima facie accrue in case of any cheque so issued and dishonoured since where is no such liability there is no fraud or dishonesty referred to above. Likewise, apart from any civil right or liability legally permissible there against, postdated cheques are of no value in point of criminal accountability since they are normally issued either without having funds in their respective account(s) or the parties had no paying liability of instant nature at their issuing time. Similarly, the cheques, which are issued as security as to develop trust between the parties as a matter of normal business dealings, and are not out-come of any transaction of consideration of the time thereof, will not be a subject of criminal accountability of Section 489-F, P.P.C. For want of element of relevant mens rea, and in a case where the parties have settled their accounts or E the outstanding dues thereby become payable as instant liability and a cheque is instantly issued against such dues, the same if turned dishonoured, would carry the element of mens rea covered by the words "dishonestly issued" as used in the section 489-F, P.P.C already issued cheques towards security and understanding so dishonoured, when tendered, with prior notice served upon the issuer to arrange payment for encashment thereof, in the bank concerned, shall carry the same punitive effect.
8. The scheme behind the provisions of section 489-F, P.P.C. Seems to be nothing but to protect the people from fraud in monetary terms i,e, loss of money against the dishonestly issued cheques- received outstanding dues towards a direct legitimate business deal or transaction as mode of payment against certain substance of consideration and or between the parties, who thereby respectively suffer loss and earn wrongful gain at one and the same time, out of one and the same business deal or transaction in any positive form (of the time, when against its consideration, the cheque was issued as mode of payment there against). It is not out of place to mention that generally, the provision of section 420 P.P.C. Covers all sorts of frauds, cheating and deception, as a result of which, the subject thereof has suffered loss of valuable(s), and a case of dishonestly issued cheques, falls within its ambit being fraud, which is synonym of the word "dishonesty" and vice versa, causing thereby financial loss to others and gaining monetary benefit out of it at the same time respectively. The provision of section 489-F, P.P.C. Is inserted to single out the cases of fraud, cheating or deception etc. Through cheque(s), which now falls within its purview exclusively, and hence, the legislature in other words, has provided a specific provision of law in that regard and thereby has particularized and or separated the same from all other fraudulent acts or deeds etc. Covered by the law on fraud(s).
9. The complainant is a company and the accused claims to be its dealer. Both sides were admittedly on business terms prior to the date of issuance of the said cheques, therefore, the company would have come forward with all record of such business transactions justifying the existence of the claim claimed to have met with the issuance of the cheque(s) carrying necessary element of mens rea beyond shadow of any reasonable doubt. In the instant case, no such material has been produced by the prosecution.
10. ' The learned trial Magistrate has rightly held the accused 'not guilty' beyond shadow of any reasonable doubt, and consequently, acquitted him from the charge of the case for want of incriminating evidence.
11. ' Consequently, I am of the view that' the appeal carries no merits on legal or factual footings.
12. Accordingly, the same stands dismissed along with the pending applications..
13. ' These are the reasons of the aforesaid short order, dated 5-8-2010.