' SHAHAB SARKI, J.---The appellant Shahid Hussain son of Dhani Dino has filed this appeal against acquittal, being dissatisfied and aggrieved with the impugned judgment dated 9-6-2014 passed by 1st Judicial Magistrate, Moro in Criminal Case No 213 of 2012 Re-State v. Janhwar Lal and others, whereby the respondent Janhwar Lal, Prem Kumar and Mohan Lal were acquitted by the trial Court by giving them benefit of doubt.
2. Briefly stated the facts of the prosecution case are that the complainant has a business of grain.
On 5-3-2012 the respondent Prem Kumar purchased 500 small bags of Rice total weighing 2450 kgs for consideration of Rs. 9,77,625 and the accused had issued a Cheque of the same amount dated 10-4-2012 drawn on MCB Bank Chak District Shikarpur. The case further is that the accused did not pay the amount and after sometime all the accused persons came and issued threats of murder to the complainant by showing pistols and thereafter they went away.
3. The police after usual investigation submitted the charge-sheet whereafter charge was framed against all the 3 accused on 29-12-2012 under sections 489-F and 506(2), P.P. C .
4. At the trial the prosecution examined the complainant Muhammad Shahid Hussain as P.W.1 who reiterated the contents of the FIR and he produced the original Cheque, original memo and the schedule for the Cheque collection of MCB Moro branch. The said P.W. Was duly cross examined in which he admitted that he has not produced any record of the subject transaction with the accused and stated that they never issued cash memo. He also admitted in the cross-examination that he does not possess the record of purchase of rice from the market nor any evidence as to the rate per Kilo gram of rice. He also deposed that nobody was present inside the shop when the alleged threats were issued.
5. The father of the complainant was examined as P.W.2. He stated that he was available at the shop when the alleged Cheque was deposited in the account of his son and same was dishonoured on account of insufficient amount. He then deposed that he along with Bakhshal Khan was available at the shop when the accused persons came and took out pistols and threatened the complainant. In the cross examination he stated that the daily business is being looked after, by his son Shahid Hussain (complainant) and he rarely sits in the shop. He admitted that there are no other witnesses of the alleged incident.
6. P.W.3 was Gul Muhammad SIO Police Station, Moro who conducted the investigation. He admitted in the cross examination that he has not examined any person from the locality regarding the alleged threats. He also did not send the alleged Cheque to hand-writing expert for verification of writing.
' Thereafter prosecution examined Zafar Ali Joyo who was posted at MCB Moro as P.W.4.
7. In the statement of accused under section 342, Cr.P.C. The accused have denied the allegations and have stated that they have no concern with the business of the complainant and they have also not issued him any threats since they are totally unconcerned.
8. The counsel for the applicant has argued that the trial Court has wrongly acquitted the respondents as the instrument by itself i.e. The alleged Cheque is sufficient proof of their being a business transaction. It has also been argued that the complainant was not bound to produce the record of the transaction against which the said Cheque was allegedly issued. He has thereafter assailed the impugned judgment and stated that the said Judgment suffers from misreading and non-reading of the evidence and therefore, is liable to be set-aside. The Counsel for the applicant has also relied upon a judgment reported in 2013 YLR 1798 (Mst. Rukhsana Aziz v. Muhammad Emad and another).
9. Learned D.P.G. Has adopted the arguments of the learned Counsel for applicant and he does not support the impugned judgment.
10. I have heard the arguments and perused the record. Before proceeding further I would like to re- produce the section 489-F, P.P.C. Which reads as follows:-- 489-F. Whoever dishonestly issue 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".
It is by now well established that to bring the case within the ambit of section 489-F two ingredients are essential i.e. Dishonouring of a Cheque, which should be towards fulfilment of an obligation or repayment of loan, as the case may be. The complainant has filed his case on the basis of alleged Cheque but he has not brought forward any proof which would substantiate that the said Cheque was for the fulfilment of any obligation. On the contrary he has completely denied any sort of record regarding the alleged transaction. It is very surprising to see that the complainant is running the business of grains but he is not keeping any record to establish the transaction. The Honourable Supreme Court has also held in various judgments that mere possession/issuance of a Cheque is insufficient for convicting the accused persons but the said Cheque is to be backed by certain obligation or a loan which is missing in the instant case.
' It is also to be noted that the parameters and scope of interference in an appeal against acquittal and appeal against conviction are quite different. In the case of appeal against acquittal the interference by a Court is unwarranted until and unless the acquittal is arbitrary, capricious and against the record. Appraisal of evidence in an appeal against conviction is done in a very strict manner but in an appeal against acquittal the same rigid method is not to be applied and interference can only be made where there is gross misreading of evidence amounting to miscarriage of justice. In the c instant case the only thing available to the complainant is a Cheque of the accused which has been repeatedly denied by the accused by stating that they have no business transaction with the complainant. In such a situation a heavy burden lies upon the complainant to discharge the onus of proof completely, which he has failed to do. I have also gone through the judgment relied upon by counsel for applicant but the same is distinguishable as there was an ' admitted obligation in the cited case-law, which ingredient is absent in the instant case.
' In view of what has been discussed above, I find nothing wrong with the impugned judgment as it is in consonance with law and facts. The criminal acquittal appeal stands dismissed vide short order of even date and these are the reasons for the same.