' IRFAN SAADAT KHAN, J.---The appellant is aggrieved by the Judgment dated 8-2-2011 passed by II Judicial Magistrate, Karachi South in Criminal Case No, 2507 of 2009, acquitting the accused/ respondent No,1 from Crime No,254 of 2009 of Police Station Artillery Maidan.
2. Brief facts of the case are that the appellant rented out her Flat No, D-38, Sunny Pride, Block 20, Gulistan-e-Jauhar, Karachi to one Mrs., Zeba Emad wife of Muhammad Emad (respondent No,1 herein) at a monthly rent of Rs,7500. Payment of rent was made regularly till December, 2007 and thereafter the respondent No,1 issued three cheques each in the sum of Rs,7500 in the name of the appellant towards the rent of the said flat for the months of January, February and March, 2008.
Out of these cheques, only one was honoured by the Bank while the remaining two were dishonoured on account of insufficient funds. The appellant sent a legal notice to the respondent No,1 but the respondent and his wife kept her on false hopes. Finally,. The appellant filed F.I.R. No, 245/2009 at Police Station Artillery Maidan under section 489-F, Pakistan Penal Code on 27-5-2009 against the respondent No,1, Muhammad Emad. The respondent No,1 was arrested and challan was produced before II Judicial Magistrate, Karachi South who, after recording of evidence and hearing arguments of the parties, acquitted the respondent No,1 vide the impugned Judgment. Hence this criminal acquittal appeal.
3. Learned counsel for the appellant vehemently argued that the respondent No, 1 issued two cheques to the appellant which were dishonoured. In order to prove the factum of dishonour, the Manager of the concerned bank was produced who affirmed that the two cheques amounting to Rs,7500 each were issued by the respondent No,1 and the same were dishonoured due to insufficient balance in his account. She referred to the statement made before the trial Court during the arguments on the bail application of the respondent No,1 that he was ready to pay the amount of the 'cheques and on this the respondent 'No,1 was admitted to bail. However, later on he did not honour his commitment. She, therefore, prayed that the impugned order be set aside and the respondent No,1 may be convicted and sentenced under section 489-F, P.P.C.
4. Ms. Azra Iqbal, advocate for the respondent No,1 contended that no document has been produced to show that there was any business connection between the appellant and the respondent No, 1 . She also contended that it was the wife of the respondent No,1 who was tenant of the appellant and not the respondent No,
1. She also submitted that no tenancy agreement was ever produced by the appellant before the trial Court. She, therefore, submitted that no interference is called for from this Court in the impugned Judgment and prayed that this acquittal appeal may be dismissed.
5. Ms. Akhtar Rehana, learned Additional Prosecutor-General, made very brief and to the point arguments. She first referred to the provisions of section 489-F, P.P.C. And thereafter contended that all the ingredients of the said provision of law are attracted in .The present case. She, therefore, prayed that the impugned Judgment may be set aside.
6. Before proceeding any further it would be advantageous if section 489-F, P.P.C. Is reproduced for the sake of convenience, the same reads as under:-- "489-F. Dishonestly issuing a cheque.---Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
7. A perusal of the above quoted section 489-F of P.P.C. Clearly shows that its intention is to discourage issuance of a cheque dishonestly for repayment of loan or to fulfil an obligation by making it a criminal offence. The burden to prove that the cheque was not issued dishonestly has been placed on the issuer and not on the complainant. For the complainant it is enough to show that a cheque was issued by the accused which was dishonoured on presentation.
8. In a reported decision of Qazi FAISAL WAJID v. MUNIR ULLAH KHAN and others (2013 PCr.LJ 400), a learned Single Judge of the Peshawar High Court, held as under:-- "6. The petitioner has entered into agreement regarding bargain of landed property with respondent No,1 attorney of one Muzaffar Khan and has dishonestly issued the cheque as security for the huge amount knowing that there is insufficient amount lying in his account. Petitioner has not denied the factum of issuance of impugned cheque and report of Bank Manager vide which impugned cheque was dishonoured. His stance was that the impugned cheque was issued only as a guarantee/security against the bargain struck between the parties. Though civil suit regarding the suit property is pending before the Civil Court regarding it transfer. However, for issuing a fake cheque civil and criminal proceedings both can be proceeded side by side.
Petitioner himself has admitted that cheque was issued as a guarantee regarding the transfer of suit property."
' And, after quoting section 489-F, further held as under:-- "7. If cheque is dishonestly issued for re-payment of loan or fulfilment of obligation and the same is dishonoured, the offender will be liable for the said offence. Word "fulfilment of obligation" amounts a guarantee for certain commitment. Hence, case of petitioner prima facie comes within the ambit of section 489-F, P.P.C."
9. In the decision reported as GHULAM MURTAZA v. The STATE (2013 YLR 566), a learned single Judge of this Court held as under:-- "In the case reported as Wajid Aman v. The State (2011 MLD 799) the High Court declined bail to the accused by holding that though the offence was punishable with R.I. For three years but keeping in view the conduct of the accused and the nature of the offence, the accused was not entitled to concession of bail. In the case of Muhammad Khan v. The State (2011 MLD 1288), bail was declined to the applicant for dishonestly issuing a cheque and cheating. The High Court observed that issuance of false cheques is increasing day by day and the people were suffering difficulties and agonies and their business due to issuance of false cheques. Such tendencies should be dealt with iron hands. Thus, the case relied upon by the learned counsel for the complainant supports his contentions."
10. I find myself in complete agreement with the above quoted observations that the tendency of issuing false and dishonest cheques is increasing day by day which is not only causing difficulties and agony to the victims of such fraudulent act but is also creating a situation of no trust amongst the people where even close relatives are not ready to advance loans to near ones only for the reason that they know about some cases where close relatives committed frauds with their kith and kin.
11. In the decision of Sardar MUHAMMAD ASLAM v. S.H.O./ INCHARGE, POLICE STATION MIRPUR ABBOTTABAD and 6 others (2013 YLR 108), it was held as under:-- "There is no denying the fact that the petitioner gave a Cheque bearing No,9528090 for an amount of Rs,1,800,000 dated 5-7-2011 to the complainant respondent, which was dishonoured at the counter of Muslim Commercial Bank, Ayub Medical College Branch, Abbottabad. However, strangely enough, in his complaint, the complainant only alleged that the petitioner owed him an amount of Rs,1,800,000 without making an oblique reference to their inter se relation as to on what account such a huge amount was outstanding against the petitioner. The offence under which the petitioner has charged with is section 489-F, P.P.C. However, section 489-F, P.P.C. Is about the dishonest issuance of a cheque by a person towards the re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation. In the present case no friendship, business or for that matter close family relations were cited by the complainant for giving such a huge amount to the accused/petitioner while lodging the complaint against him."
12. In the present case the appellant has clearly made out a case that she is the landlady while the respondent No,1 's wife is her tenant and for payment of the rent of the premises, the respondent No,1 gave her three cheques out of which two were dishonoured in respect of which he filed the present criminal case against the respondent No,l.
13. What constitutes an offence under section 489-F, P.P.C. Every transaction where a cheque is dishonored may not constitute an offence. For example if gives a cheque of Rs,10,000 to B as assistance for the wedding of B's sister and the same was dishonoured by the Bank on presentation, it would not make out a case under section 489-F, P.P.C. As the same was neither for repayment of a loan nor for fulfilment of an obligation. The ingredients to constitute an offence under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfilment of an obligation and lastly that the cheque in question is dishonoured. As held in the above cited case of Sardar Muhammad Aslam, if "friendship, business or for that matter close; family relations were cited by the complainant for giving such a huge amount to the accused/petitioner while lodging the complaint against him" then the complainant would succeed as in such cases usually written agreements are not drawn out before advancing the loan, etc.
14. Another important factor to be kept in mind is the last part of section 489-F, P.P.C. Wherein a duty has been cast upon the issuer of a cheque to ensure that he has made arrangements with his banker for encashment of the cheque issued by him. In case it is shown that such arrangements were made and the cheque was dishonoured due to some fault of the bank, in such case the issuer would not come under the ambit of section 489-F, P.P.C. In case no such arrangements were made by the issuer of the cheque with his bank or even the bank account was closed and a cheque was issued then there is no doubt that the cheque was issued with dishonest intention.
15. I have carefully scrutinized evidence brought on the record. It appears that the learned trial Court has failed to appreciate the evidence on record in accordance with the settled principles of law. This is a clear case of misreading and non-reading of the evidence on record as the impugned, judgment, on the very face of it, suffers from lacunae. The learned trial Court has not assigned any reasons for recording acquittal in the case. Even the impugned judgment does not fulfil the requirements of section 367(2), Cr.P.C. The statement of the accused has been recorded in a mechanical manner. I have several reasons to come to the conclusion that the trial Court has not applied its mind while passing the impugned judgment. Since it has already been held that the prosecution evidence has not been appreciated properly and sound reasons have not been assigned for recording acquittal in the case as such the matter requires reappraisal of evidence.
Therefore, the impugned judgment of acquittal is not sustainable in law and the same is hereby set aside and the matter is remanded to the trial Court for re-writing the judgment in the light of the aforesaid observations recorded by this Court.
16. In view of the above discussion, this appeal is allowed to the above extent. The respondent/accused is directed to surrender himself before the trial Court and the trial Court is directed to dispose of the case within a period of one month under intimation to this Court through the MIT.