' ABDUL LATIF KHAN, J.---Through the instant petition under section 561-A, Cr.P.C, the petitioner, Mst.
Fauzia Bibi, seeks quashment of F.I.R. No.710 dated 29-9-2013 registered under section 489-F P.P.C.
At Police Station Cantt: D. I. Khan.
2. Learned counsel for the petitioner contended that the F.I.R. Has been lodged against the petitioner with ulterior motives by the complainant with the connivance of local police in order to blackmail the petitioner for their allured temptation. It was argued that petitioner is working as charge Nurse at MMM Teaching Hospital, D.I.Khan and at the same time a house wife has been entangled in the case by the complainant, with whom she has no concern at all The complainant is not even known to her previously. He argued that agreement dated 15-6-2012 annexed with the complaint, allegedly executed between isc complainant and Muhammad Haroon, husband of the petitioner, has no nexus with the petitioner. He contended that no cheque was issued by the complainant for fulfilment of the obligation. It was added that civil suit for cancellation of agreement filed by Haroon against the complainant is pending adjudication before the civil Court.
It was also contended that frivolous proceedings have been initiated against the petitioner amounting to abuse of process of Court, liable to be quashed. It was added that ingredients of section 489-F, P.P.C. Are not fulfilled in the instant matter. It was argued that much prior to the issuance of cheques, registration of F.I.R. And even the execution of alleged agreement, an application was moved by the petitioner on 5-4-2012 to the police disclosing information that her cheque book was lost alongwith affidavit but ignored by the police at the time of registration of case.
3. Conversely, the learned A.A.-G. Assisted by learned counsel for the complainant contended that let the case be decided on merits by the trial Court and quashment at this stage was not the requirement of law. It was argued that the husband of petitioner had entered into agreement with complainant for purchase of vehicle for the petitioner and in turn, she issued cheques with dishonest intention, despite knowledge of insufficient funds in her account, which were dishonoured and prima facie she is connected with the commission of offence and instant petition is misconceived. It was added that if no case is made out, proper course is to attract the relevant provision of law at proper stage in the trial Court but instant petition is not maintainable and is liable to be dismissed.
4. I have given my deep consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.
5. The perusal of record reveals that an agreement/sale-deed was executed on 15-6-2012 in between complainant Farid Khan and Haroon, in respect of vehicle XLI Model 2009, Registration No.ASP 721, Chassis No.140-2030549, sold by Farid Khan in favour of Haroon for Rs.15,25,000 on part payment of Rs.7,00,000 and the remaining amount of Rs.8,25,000 was agreed to be paid within six months till 15-12-2012. It was also agreed that vehicle was handed over to Haroon, who in turn issued two cheques of equal amount of Rs.4,12,500 of Account No.2652/2 bearing No. 6655913 NBP Branch, Sheikh Yousaf and No.2153302 Account No.02317900101203 HBL Eidgah Branch, D.I.Khan. This deed was witnessed by Asmatullah and Abidullah as marginal witnesses.
6. It is pertinent lo mention that petitioner figures nowhere in the deed in any capacity. The complainant moved an application to the DPO,D.I.Khan, against the petitioner alleging therein that vehicle Registration No.ASP 721 XLI, Model 2009 was sold by him in her favour who paid partial amount and issued cheques for the remaining amount, which were presented to Banks and were dishonoured due to insufficient funds.
It was the same vehicle sold vide agreement to Haroon, who happens to be the husband of the petitioner, still residing together as spouses.
7. The perusal of cheques reveals that both these were issued in favour of one Kamran. The application of complainant culminated into F.I.R. And other entire record is silent about the existence and role of Kamran in the episode. However, learned counsel respondent/ complainant, on query by the Court, informed that he happens to be the brother of complainant but could not explain his status as to why cheques were issued in his favour and he has not made report to the police, when the cheques were dishonoured by the Banks.
8. In this case, the complainant and petitioner were not directly in transaction to each other at any stage. They were not known to each other and hail from different area situated at far-flung and have no concern inter se in any manner. The question of issuance of cheques in favour of one Kamran without any reason and justification, does not stand to reasons. The complainant has got no locus standi to get the case registered against the petitioner, as he has neither handed over the car to her nor she made partial payment and if he has some case made out, would be against Haroon but in no eventuality, against the petitioner. It seems that both petitioner and Kamran are the dummies introduced by the complainant and Haroon and in fact they are the persons related to the transaction behind the curtain.
9. The provisions of section 489-F, P.P.C. Are not at all attracted to the peculiar circumstances of case which are reproduced as under:- "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 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 dishonoured and that the bank was at fault in not honouring the cheque."
10. The bare reading of this section would suggest that all necessary ingredients to constitute an offence, are missing in this case, as the petitioner has never issued any cheque in favour of complainant, so he has got no locus standi to lodge the report and has succeeded to get the case registered in connivance with local police, who were instrumental to entangle the petitioner in disregard to their duties entrusted to them by the State, rather acted as partisan with the complainant for reasons best known to them, which is highly deprecated. As no cheque issued in favour of complainant, therefore, question of dishonesty and repayment of a loan or for discharging any obligation, would not arise in this case. Mere issuance of cheques, which were later on dishonoured would not constitute an offence unless all the ingredients of section 489-F, P.P.C. Are fulfilled.
11. Quite apart from this, the parties to the agreement are involved in litigation ,before civil Court, in case filed by Haroon for the cancellation of said deed, and fate of the same would be determined by the competent Court. Section 489-F, P.P.C. Or for that matter any provision of Penal Code could not be used as tool for effecting recovery of civil claim, which falls exclusively in the domain of civil Court and to permit the recovery/civil liability through criminal justice system would amount to abuse of process of law. The entire transaction does not form any liability against the petitioner, as none of the components of offence are attracted to facts and circumstances of the case. Malice on the part of complainant in connivance with local police is visible on the face of record. No criminal liability/case is made out against the petitioner.
12. For the reasons mentioned above, the instant petition is accepted and consequently F.I.R. No.710 dated 29-9-2013 registered against the petitioner under section 489-F P.P.C. At Police Station Cantt: D.I. Khan is hereby quashed.