' SADIQ HUSSAIN BHATTI, J.---Major (R) Ali Murad son of Jamaluddin, appellant/complainant, being aggrieved and dissatisfied by the judgment dated 29-8-2012, passed by Judicial Magistrate-X (Central), Karachi, acquitted accused/respondent Muhammad Kamran in Case No,1778 of 2010 initiated on F.I.R. No,402 of 2010 registered at Police Station Joharabad, Karachi for offence under section 489-F, P.P.C., preferred this Criminal Acquittal Appeal.
2. Brief facts leading to this F.I.R. Are that the F.I.R. Bearing No,402 of 2010 was registered at Police Station Joharabad, Karachi for an offence under section 489-F, P.P.C. Stating therein the appellant is an employee and Admin Manager of APEX Marketing Services and the respondent is the Proprietor of Shop namely Hashim General Store. An amount of Rs.2,67,020 was outstanding against the respondent in respect of dealing in the business, for which the respondent issued a Cheque bearing No,CA-10777430 dated 11-4-2010, upon presentation the said cheque in the concerned Bank, the same was dishonoured. Consequently, the F.I.R. Numbered above has been lodged against the respondent.
3. Police after usual investigation submitted the charge-sheet against accused/respondent in the concerned Court.
4. During trial proceedings prosecution examined four P.Ws. To prove its case. On the other hand, accused denied the prosecution allegations and pleaded his innocence, and further submitted in his statement under section 342, Cr.P.C. That he has paid all outstanding amount against him to one Jamaluddin an official of APEX Marketing. Accused/respondent also examined himself on oath as required under section 340(2), Cr.P.C. Accused/respondent also examined one D.W. In support of his above plea.
5. P.W.1 Ali Murad, complainant examined at Exh.3 has testified that he was serving as Admin Manager in APEX Marketing since April 2010. He knew accused/respondent Kamran as he was running a General Store Shop under the name and style of Hashim General Store. APEX Marketing are distributors of various items and they used to supply him various products for running his store.
A consignment of assorted products worth Rs.2,67,020 were supplied to him and in lieu thereof accused issued Cheque dated 11-4-2010 against the outstanding amount. The received Cheque was deposited in the Bank for clearance, as a routine, but the same was bounced/dishonoured on 13-4-2010. Complainant Ali Murad went to his (accused) shop and informed him accordingly about the Cheque issued by him in favour of APEX Marketing but received no response from accused. He further deposed that under the directions and authority of his Company he lodged the above F.I.R.
On 26-6-2010 at 11.30 against the accused. He produced the F.I.R. As Exh.3-A. He handed over the original Cheque to Police on their visit to NIB Bank. He produced the Cheque as Exh.3-C. During his testimony he produced Cheque No,CA-10777430 and its original slip as Exh. 3-D and Exh. 3-E. He further deposed that Cheque in question was given by one Rehman who also used to sit at the shop of Zahoor our Sales Manager. He identified the accused in the Court.
6. In the cross-examination, he denied the suggestion that he had no authority to lodge the F.I.R. He admitted that there is a post of Order Broker in the Company known as 06. He also admitted in the cross-examination the 06 of every area is a different person and further admitted that Jamaluddin is 06 of the said area where above said shop is located and during his period the Cheques were issued from said shop and were duly encashed. He denied that it was not in his knowledge that Jamaluddin came to the shop of accused under the direction of Chaudhry Fayyaz, Business Manager of Company and took the cash payment and signed the voucher, but voluntarily stated that Jamaluddin was not authorized to collect payment. He denied that it was not in his knowledge that to whom Jamaluddin informed that money had been snatched from him and that he did not hold any enquiry in money snatching case. He admitted that he went to the shop to inform that the Cheque has been dishonoured/bounced. He informed Police in his statement that he along with several persons went to the shop of accused. He also admitted that neither he has any knowledge of the signing of voucher by Jamaluddih nor he identified his signatures. He denied the suggestion that it was not in his knowledge that on 23-4-2010, Rehan Partner of that shop moved on application at Police Station Yousuf Plaza, that despite the outstanding amount received by Company, they are not returning the bounced Cheque. He denied the suggestion that he and his Company has filed this false case in order to save us from legal action taken on the application of Rehan filed at Police Station Yousuf Plaza. He admitted that cash amount and signature on Cheque bear different pen ink and different handwriting. He also admitted that he has mentioned in the F.I.R. That he supplied the products at Hashim General Store.
7. P.W.2 Zahoor Ahmed examined as Exh.4 deposed that he was working as Supervisor in APEX Marketing Services. Accused Kamran used to be present at Hashim General Store. We used to supply and deliver products of Unilever (Pakistan) being distributor of Unilever. We supplied goods worth Rs.2,67,020 to Hashim General Store and they issued Cheque towards the payment to him.
This P.W. Further stated that on receiving the Cheque he prepared Daily Sale Report (DSR) and deposited the Cheque with Company. We had supplied the goods on 1-4-2010 and after 13-4-2010 he came to know that Cheque is bounced. Company lodged the F.I.R. Through Major Sahib. Police visited the Bank where original Cheque was handed over to them. He correctly identified accused in the Court.
8. In the cross-examination he admitted that he did not mention the fact to police that he delivered the goods to said shop. He further deposed that it is mentioned in the Police Statement that payment was received by Jamal through Cheque but denied that it was not in his knowledge that on 13-4-2010 Jamal received the cash payment which was snatched from him on gunpoint. He denied that false case has been filed against accused and that he has deposed falsely at the instance of Company. He also admitted that in case of non-payment or bouncing of Cheque Booker used to collect the payment.
9. P.W.3 Waqar Haider, Manager NIB Bank examined as Exh.7, deposed that on 30-6-2010 he received a letter from Police for verification of bounced Cheque. On 2-7-2010 we replied through letter the reasons of dishonouring the said Cheque being insufficient funds in the account. Vide another letter, we provided the address of Account-holder.
10. He was not subjected to cross-examination though opportunity afforded.
11. P.W.4 ASI Farzad Khan Investigating Officer examined at Exh.8. This P.W. During his examination, testified that on 25-6-2010 he was posted at Police Station Jauharabad (Investigation), Karachi. He received the F.I.R. Of this case for investigation. On 29-6-2010 at 17.30 hours, he visited the Bank and seized the bounced Cheque and prepared such memo. He verified the Cheque and slip.
Investigating Officer issued to NIB Bank for verification of particulars. He also recorded the 161, Cr.P.C. Statements of witnesses. In the cross-examination this witness deposed that he received the F.I.R. Of this case on the same day of lodging of F.I.R. He admitted that employee Jamal was neither produced by complainant nor he summoned him as his name does not appear in the F.I.R.
He admitted that P.W. Zahoor used to collect Cheque/payments deposited the same with the Company. This P.W. Further deposed that despite the fact that Jamal came for collection of cash executed receipt he did not call him as he had left the job. He admitted that complainant did not give him any such letter. Witness also deposed that he did not remember if he had issued any notice to Jamal to appear before him. He also admitted that Rehan told him that cash amount received by Jamal was snatched from him.
12. Accused Kamran in his 342, Cr.P.C. Statement as well as on oath statement under section 340(2), Cr.P.C. Admitted that he was running shop Messrs Hashim General Store, APEX Marketing and in lieu thereof issued Cheque. He knew Complainant Ali Murad and Sales Manager of APEX Marketing. On 11-4-2010 he had issued Cheque. No,10777430 for Rs.2,67,020 to APEX Marketing, which was received by Zahoor and Jamaluddin employees of the said Company. He admitted that said Cheque bounced on account of shortage of funds in his account, Company contacted him through employee Jamaluddin on which on 13-4-2010 he made full payment in favour of Company and obtained such voucher at Exh.11-A, showing that Jamaluddin had received amount from him.
Jamaluddin also executed a receipt in presence of Secretary Rizwan which is produced as Exh.11-C.
Concluding his statement, he deposed that Cheque bounced as a result of bona fide mistake as he did not check his account. He had mens rea to usurp the same as he immediately returned the money. He pleaded innocence and prayed for justice. Terms of business with APEX Marketing are still continued sometime in shape of cash and sometime in Cheques.
13. In cross-examination, he stated that Cheque was given by his Partner Rehan and cash amount was also given by Rehan. He further stated that he is still in business with APEX Marketing.
14. D.W. Rehan during his statement testified that he is in partnership with Kamran in running the shop Hashim General Store. On 13-4-2010, we made total payment of Rs.2,67,020 in cash to Jamaluddin, who was Order Booker of APEX Marketing Company, said payment pertained to the amount of which Cheque was bounced. At that time, he obtained signature of Jamaluddin on debit voucher. Police had recorded my statement.
15. Learned counsel for the appellant/complainant argued that accused has not denied the bouncing of Cheque for want of insufficient funds in his account. The documents produced by him as Exh.11-A, Exh.11-B, and Exh.11-C are forged and managed. Defence taken by the accused is not a valid defence. He has further urged that the impugned order is passed contrary to the facts and the law and same is not maintainable in the eyes of law and liable to be set aside. He has further argued that the impugned order is based on the surmises and conjecture of evidence of the prosecution, which have not been appreciated and an undue weight has been given to the defence version, which needs interference. He has next argued that during the trial the respondent admitted himself that he issued the cheque and paid the amount to one Jamaluddin, the Order Booker of Messrs Apex Marketing Services, but he has failed to produce in the witness box in his support. According to the learned counsel for the appellant, there is no contradiction in the evidence of the witness, who successfully pointed out the respondent of his guilt.
16. Mr. Shahzad Mehmood, learned counsel has filed his Vakalatnama on behalf of accused/respondent and stated that he is ready to proceed with the matter. He mainly argued on the point being a bona fide mistake, Cheque was bounced but the moment he was informed, he immediately paid amount in cash of dishonoured Cheque. There was no dishonest intention on the part of the accused, he was doing business with Company since last five years and same still continues. Business relationship has not been discontinued.
17. State Counsel argued that all the P.Ws. Have supported prosecution case, P.Ws. Are consistent on material points and in order to discourage this type of practice, accused be convicted.
18. Business deal between the Parties is admitted so also the issuance of Cheque by accused in favour of APEX Marketing. Accused also admits when informed that same has been dishonoured for want of insufficient funds in the account, accused immediately on the same day paid the outstanding amount in cash.
19. After hearing the learned counsel for the Parties and perusing the record/evidence trial Court acquitted the accused by giving him the benefit of doubt.
20. According to trial Court there was business deal between accused/respondent and APEX Marketing Company for many years. Cheque issued by accused is also an admitted fact by the Parties. The same was dishonoured on 13-4-2010 when presented at Bank for want of insufficient balance in account.
21. During the hearing of Criminal Acquittal Appeal, the learned counsel for the appellant/complainant contended that impugned judgment passed by trial Court is based on surmises and conjectures and the evidence produced by prosecution has not been appreciated.
22. Accused has admitted the Cheque issued by him. Trial Court did not consider that the accused issued the Cheque with dishonestly manner with mala fide intention and ulterior motive. Learned counsel further argued that the accused has taken the plea that he had paid the amount of Cheque to Jamaluddin, Order Booker of APEX Marketing, but failed to produce him as defence witness. All the P. Ws. Have given the evidence without any contradiction.
23. There is clear violation of Article 79 of the Qanun-e-Shahadat Order 1984.
24. Mr. Khichi, learned APG for the State has not supported the impugned judgment of Lower Court.
25. Having heard the learned counsel for the Parties and perused the available record. I am of the considered opinion that the Parties are engaged in business relation since pretty long time even continues after the alleged incident. During the business transaction the Cheque amounting to Rs.2,67,020 was issued by accused/respondent, which was dishonoured by Bank on 13-4-2010 on account of insufficient funds in the account. The Marketing Manager informed the Company and he has been directed to lodge the F.I.R. Against the accused. Accordingly such F.I.R. Was lodged against the accused at Police Station Jaharabad, Karachi by complainant Ali Murad under section 489-F, P.P.C. Accused, in his statement under section 342, Cr.P.C. And 340(2), Cr.P.C. Has stated that the moment he was informed by Company that his Cheque has been dishonoured, he on the same day paid in cash amount of dishonoured Cheque to Jamaluddin employee of the Company and obtained such receipt. Issuance of Cheque and subsequently the bouncing of Cheque is undisputed which is punishable under section 489-F, P.P.C. The trial Court has rightly mentioned that section 489-F, P.P.C. Shall be attracted if the following conditions are fulfilled:--
(i) issuance of Cheque.
(ii) such issuance was with dishonest intention
(iii) the purpose of issuance of cheque should be to fulfil an obligation or to repay a loan.
26. Now in the present case element of dishonest intention is missing, hence offence is not completed. In this case the important person, who could have solved this mystery was Jamaluddin an employee of APEX Marketing. It is very strange that neither the Company nor the Investigating Officer of the case took pain in examining him as witness. The version of the Company is that Jamaluddin has left job but no any record is available to approach him to find his whereabouts, this is almost unbelievable. Investigating Officer in his statement mentions that he made no efforts to procure his attendance according to him, since his name did not appear in the F.I.R., hence he did not issue any notice to him for appearance. Complainant Ali Murad and Zahoor both employees of the Company are examined but no questions regarding his whereabouts are asked from them.
27. The independent witnesses were not examined by Police. Scope of interference in an appeal against acquittal as compared to appeal against conviction, is somewhat limited. High Court may interfere in the judgment of the acquittal when it comes to the conclusion that the trial Court has disregarded the material evidence or misread the evidence or received evidence illegally or the judgment is against any provision of law. The above dictum is laid down in the case reported in 1989 PCr.LJ 1005 (the State v. Nayar Mirza).
28. In another case reported in 1989 PCr.LJ 1179 (the State v. Sikandar Hayat), wherein it has been held that acquittal order passed by the Court below is not to be disturbed until and unless it is shown to be perverse or manifestly wrong and has resulted in miscarriage of justice.
29. In the case reported in 2012 M LD 1321 (Muhammad Gulzar v. Adalat Hussain), wherein jt has been held that appeal against acquittal Principles - Presumption of innocence - Presumption of innocence is attached with the accused after acquittal.
30. It may be observed that interference by this Court in the acquittal judgment passed by the trial Court is unwarranted unless the acquittal is arbitrary, capricious, fanciful and against the record.
Appraisal of evidence in an appeal against conviction is done strictly, but in an appeal against acquittal the same rigid method is not to be applied. Interference by this Court may be made only where there is gross misreading of evidence amounting to miscarriage of justice. It is well settled principle of law that acquittal of an accused cannot be set aside lightly in absence of any strong evidence. Finding of acquittal not sacrosanct, if reasons are of speculative or artificial in nature or based on no evidence or misrepresentation of evidence or the conclusion drawn as to guilt or innocence perverse resulting into miscarriage of justice, this Court can interfere in the finding of acquittal.
31. The documents produced under Exh.11-A and Exh.11-B cannot be given legal weight as contended by the learned counsel for the complainant on the ground that signatures on it are not proved to be of Jamaluddin. To procure the attendance of Jamaluddin is within the ambit of complainant where he was employed and not accused as urged by him.
32. In the above circumstances, as placed hereinabove and the various dictum of the honourable Superior Court taken into consideration, I am of the opinion that the appellant has failed to prove his case beyond the shadow of doubt. Consequently, this Criminal Acquittal Appeal merits no consideration. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.