This Intra Court Appeal is directed against the order dated 2.12.2014 passed by the learned Single Judge-in-Chamber whereby Writ Petition No.7935/2014, filed by the appellant challenging the order dated 30.10.2014 whereby the learned Ex-0fficio Justice of Peace, Bahawalpur disposed of the application under Section 22-A Cr.P.C. with the direction to respondent No.3 to appear before the SHO concerned and produce original cheque and dishonor slip who shall proceed with the matter in accordance with law, was dismissed.
2. It has been contended on behalf of the appellant that the orders dated 2.12.2014 and 30.10.2014 are against the law and facts of the case; that civil litigation is pending between the parties regarding the cheque (s) in question; and that the case of respondent No.3 is not covered within the parameters of Section 489-F PPC, as such, both the orders are liable to be set aside being not sustainable in the eye of law.
3. On the other hand, the learned counsel for respondent No.3 has supported the impugned orders contending that the appellant has issued the cheque (s) in order to fulfillment of his obligation and in this regard, the appellant has also deposited Rs.20,00,000/- in the Civil Court whereupon respondent No.3 has withdrawn his application under Section 22-A Cr.P.C. for the time being, as such, the impugned orders are not called for any interference.
4. Heard. Record perused.
5. It is borne out from the record annexed with Writ Petition No.7935/2014 that earlier on 24.7.2014, respondent No.3 filed an application under Section 22-A Cr.P.C. for registration of a criminal case against the appellant alleging that he (appellant) borrowed an amount of Rs.70,00,000/- from the father of respondent No.3 for purchase of land and for repayment of the said loan, he gave four cheques of different dates, out of which, cheque No.0216781 dated 27.12.2013 amounting to Rs.20,00,000/- on presentation was dishonoured, as such, he has committed the offence under Section 489-F PPC. Putting this stance in juxta position with the plaint in the suit for specific performance of agreement to sell dated 12.11.2012 titled Ch. Muhammad Asghar Bilal VS Zarqa Awais, filed by the appellant against Zarqa Awais (real sister of respondent No.3) on 25.8.2014, it reveals that Mian Ghulam Awais Awaisi, real father and general attorney of said Zarqa Awais, executed an agreement to sell dated 12.11.2012 in respect of land measuring one kanal Plot No.3-A situated at Muhammad Hussain Road, Model Town, Bahawalpur in favour of the appellant against a consideration of Rs.1,20,00,000/-, out of which, the appellant paid Rs.50,00,000/- and for payment of remaining amount of Rs.70,00,000/- he has handed over cheque No.0216781 dated 27.12.2013 amounting to Rs.20,00,000/-, 0216782 dated 27.6.2014 amounting to Rs.20,00,000/-, 0216783 dated 27.12.2014 amounting to Rs.20,00,000/- and 0216784 dated 27.6.2015 amounting to Rs.10,00,000/- Later on, said Ghulam Awais Awaisi died and the appellant contacted Zarqa Awais, real sister of respondent No.3, with the request that she may receive the remaining consideration price in lump sum and return the above said cheques to him but she flatly refused. Consequently, the appellant filed a suit for specific performance of agreement to sell on 25.08.2014 and also filed another suit on 29.08.2014 for cancellation of above said four cheques titled Ch. Muhammad Asghar Bilal VS Mian Muhammad Yaqoob etc. which are still pending adjudication before the Court of competent jurisdiction.
It will not be out of place to mention here that during the pendency of application under Section 22-A Cr.P.C., the parties arrived at a compromise, according to which appellant was required to deposit the amount in question in the Court and accordingly he deposited a sum of Rs.20,00,000/- in the Civil Court where the suits are pending. On the deposit of the above said amount, respondent No.3 withdrew the said application under Sections 22-A & 22-B of Cr.P.C. on 6.9.2014 which means that prima facie, respondent No.3 has impliedly admitted the version of the appellant. Anyhow, despite the above said civil litigation between the parties, on 22.10.2014, respondent No.3 mischievously filed another application under Section 22-A Cr.P.C. for registration of a criminal case against the appellant on the basis of dishonoured cheque No.0216782 dated 27.6.2014, which is the subject matter of suit for cancellation of the cheques but learned Additional Sessions Judge/Justice of Peace illegally and unlawfully passed the direction to the SHO to receive the document and proceed with the matter in accordance with law vide order dated 30.10.2014 and similarly the learned Single Judge-inChamber has also not taken into account the real fact in controversy while dismissing the Writ Petition No.7935/2014 vide order dated 2.12.2014. It is established from peculiar facts and circumstances of the case that the dispute between the parties is of civil nature and respondent No.3 by twisting the real facts ignited the criminal proceedings against the appellant and made an abortive attempt with malafide intention to triumph over the appellant under the abuse of process of law. The provisions of Section 489-F PPC do not attract in the instant case because the following ingredients are necessarily to be proved:- i) issuance of cheque; ii) such issuance was with dishonest intention; iii) the purpose of issuance of cheque was to repay a loan or to fulfill an obligation; iv) on presentation, the cheque is dishonoured. For the facility of ready reference, the provision of Section 489-F PPC is reproduced asunder: - "Whoever dishonestly issues a cheque towards re-payment of a loan of fulfillment 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".
For attracting provisions of Section 489-F PPC, it has to be showed that cheque was issued with dishonest intention; and that purpose of issuance of such cheque was to repay a loan to fulfill an obligation and if such requisites are not proved, then the provisions of Section 489-F PPC would not attract and it cannot be said that the offence under Section 489-F PPC has been committed.
Putting said provision of law in juxta position with the instant case, it appears the cheque (s) were issued by the appellant in pursuance of the sale agreement of the property, as such, these cheque
(s) neither appeared to have been issued dishonestly nor with intention to cheating or defrauding respondent No.3 or any other person, therefore, the ingredients of dishonesty and repayment of loan or fulfillment of an obligation are missing in the instant case rather on the other hand, on the refusal of Zarqa Awais to fulfill his part of obligation, the appellant filed the suits for specific performance and cancellation of cheques. Hence, we are of the considered view that while passing the impugned order, the learned Single Judge-in-Chamber has not properly considered the facts of the case, as such, the same is liable to be set aside. Reliance is placed on the case of Rai Ashraf and others VS Muhammad Saleem Bhatti and others (PLD 2010 SC 691).
6. Resultantly, the instant Intra Court Appeal is accepted by setting aside the order dated 2.12.2014 as well as 30.10.2014 and as a consequence thereof, the Writ Petition No.7935/2014 is accepted and the application under Section 22-A Cr.P.C. dated 22.10.2014 is hereby dismissed.