' AALIA NEELUM, J. --- Abdul Hameed, appellant has brought the instant appeal against the judgment dated 27.09.2012 passed by the learned Magistrate Section-30, Chunian District Kasur whereby he acquitted respondent No,1 of the charge framed against him in case F.I.R. No,87 dated 17.02.2011 registered under section 489-F P.P.C. At Police Station Chunian, District Kasur.
2. Brief facts leading to this appeal are that the F.I.R. No,87 dated 17.02.2011 was registered at Police Station Chunian for an offence under section 489-F P.P.C. Stating therein that on 21.10.2010 the complainant had sold Toyota Hiace, having registration No,4597- PRH Model 1984, Chassis No, 0001625 Engine No, 07938154 to respondent No,1. Respondent No,1 issued a cheque bearing No, 47171743 amounting to Rs,3,40,000/- towards outstanding liability against him, upon presentation the said cheque in the concerned Bank, the same was dishonoured on 07.02.2011 due to non- availability of the amount in account. Consequently, the FIR numbered above has been lodged against respondent No, 1.
3. After completion of usual investigation, complete challan against respondent No, 1 was submitted before the learned Trial Court. Respondent No,1 was formally charged to which he did not plead guilty and claimed trial. In order to establish the guilt of the accused/respondent No, 1, the prosecution examined four witnesses. Thereafter, the statement of accused/ respondent No, 1 was recorded under section 342 Cr.P.C, wherein he denied and discarded the prosecution evidence. After hearing the arguments, the learned Magistrate Section 30, Chunian, District Kasur, acquitted the accused/respondent No,1 from the charges leveled against him.
4. The learned counsel for the appellant has argued that issuance of cheque by respondent No,1 and the same being dishonoured by the bank was proved on record. Learned counsel has further argued that the impugned order is based on surmises and conjectures of evidence of the prosecution, which has not been appreciated; that the cheque was returned by the Bank just to appear before the competent officer for putting his thumb impression on the cheque; that the prosecution has fully proved its case through cogent and convincing evidence and that the learned Trial Court has erred in acquitting the accused/respondent No, 1.
5. I have considered the arguments advanced by the learned counsel for the appellant and have minutely perused the record.
6. Going by the judgment of the learned Trial Court, it can be seen that the learned Trial Court has categorically found that complainant- appellant has failed to establish that alleged cheque was issued by the accused/respondent No, 1 in favour of the complainant. The original cheque was not produced by the complainant (PW2) in evidence before the learned Trial Court. The prosecution also did not produce any evidence showing that alleged cheque was issued by the accused- respondent No,1. Thus, despite the fact that the complainant (PW-2) was aware that a cheque allegedly issued by the accused/respondent No, 1 was dishonoured, the same was not proved.
7. According to the statement of Bank Manager (PW-3) the accused/respondent No,1 was not an account holder. As per Ex.PD the reasons for non-payment of the cheque was that the account holder was required to appear in person and sign the cheque in presence of Bank Officer whereas the complainant (PW-2) deposed that on 07.02.2011 cheque was dishonoured for the reason that the accused had no funds in the account. Thus, the prosecution has not succeeded in proving the guilt against respondent No, 1 that the cheque was dishonoured for want of funds in the account of the accused. PW-3 Bank Manager also deposed that accused/respondent No,1 is not an account holder, whose cheque was allegedly given to the complainant. The complainant (PW-2) had not .Proved that accused/respondent No, 1 issued the alleged cheque. The initial burden was on the complainant to prove that alleged cheque was issued by the accused/respondent No,1 and the same was not discharged accordingly. The cheque drawn by a person on an account maintained by him with a banker for payment of any amount to another person from out of that account for the discharge of whole or part liability, is returned by the bank unpaid, either because of the amount of money mentioned on the credit of that account is insufficient to honour the cheque or for any other reason mentioned in memo of return, such person shall be deemed to have committed an offence, whereas in the instant case it is alleged that alleged cheque was issued by respondent No,1 but said cheque was not of the account of respondent No,
1. It is deposed by the Bank Manager that cheque was not of account of respondent No,
1. The prosecution did not produce a single witness to prove that the alleged cheque was issued by the accused/respondent No,
1. The prosecution had failed to produce any evidence to show the intention of accused/respondent about fraudulently using the cheque of other account holder for any ulterior motive. If such cheque was dishonoured, it is not an offence under section 489-F P.P.C. The learned Trial Court has rightly discarded the prosecution evidence as there was no material available on the record for conviction of respondent No,1, namely, Ali Sher.
8. It may be observed that interference by this Court in the acquittal judgment passed by the learned Trial Court Is unwarranted unless the acquittal is arbitrary, capricious and against the record. In the given circumstances, I do not find any infirmity or illegality in the acquittal order of the learned Trial Court. It is well settled principal of law that there is double presumption of innocence in favour of 'acquitted accused. The Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Zaman v. The State and others" (2014 SCM R 749) has been pleased to observe as under:--- ' Above all else when initial presumption of innocence is strengthened on the acquittal of the accused, we would not like to interfere therewith simply because another view is equally possible."
' The learned Trial Court while recording the order of acquittal has properly appraised and appreciated the evidence in its true perspective and the impugned judgment does not suffer from any misreading of non-reading of .Evidence, therefore, this Court has persuaded to hold that the judgment passed by the learned Trial' Court is well versed and based upon sound reasoning, therefore, while adopting peculiar circumstances I am hot inclined to interfere in the judgment rendered by the learned Trial Court which is not perverse, as it has been observed by the Hon'ble Supreme Court of Pakistan that in such circumstances, acquittal earned by an accused should not be disturbed. Reliance has been placed on the case reported as Jahangir v. Amanullah and others (2010 SCM R 491).
9. For the reasons supra, the appeal is without merits and the same is dismissed in limine under Section 421 Cr.P.C.. As the learned Trial Court has not committed any illegality or material irregularity in exercise of its jurisdiction vested in it.
Criminal acquittal .