MUHAMMAD SALEEM JESSAR, J.---By means of instant Criminal Acquittal Appeal, the appellant has assailed Judgment dated 01.09.2013 passed by learned IInd additional Sessions Judge, Karachi South, whereby he allowed Criminal Appeal 24 of 2013 and set aside the Judgment of conviction dated 22.08.2013 passed by learned Vth Judicial Magistrate, Karachi South in Cr. Case No.2345/2012 (re: State v. Kim Chong Bae) arising out of FIR No.233/2012 registered at Police Station Boat Basin ACLC, Karachi under section 489-F , P.P.C., and acquitted respondent No.2, Kim Chong Bae.
2. Concisely , the facts of the prosecution case giving rise to the filing of instant Cr. Acquittal Appeal, are that on 04.5.2012, at about 1830 hours, complainant Kim Seau Bae, lodged the FIR at Police Station Boat Basin, stating therein that he is residing at Korea and also at Karachi Pakistan and Kim Chong Bae had given him a Cheque bearing No. FCA-4350397 of 50,000 US Dollars equivalent to Pak Rs.45,00,000/-, of Union Bank (now acquired by Standard Chartered Bank) which on presentation in the concerned bank was dishonoured due to insuf ficient funds.
3. After completing the investigation, Investigating Officer submitted challan under section 489-F , P.P.C. against respondent / accused. A formal charge was framed against the accused vide Ex.2 to which he did not plead guilty and claimed to be tried vide his plea recorded as Ex.2/A.
4. In order to prove its case against the accused, prosecution examined PW-01 Complainant Kim Seon Bai son of Kim Huen at Ex.3, who produced the application submitted to SHO as Ex.3/A, FIR as Ex.3/B, Original Cheque No.FCA-4350397 dated 15.3.2012 along with cheque return memo as Exs.3/E and 3/F. P.W. 2 Waheed Ahmed was examined at Ex.4, whereas P.W. 3 SIP Nasrullah Khan was examined at Ex.5, who produced copy of Bank Letter as Ex.5/A, Daily Diaries Nos.2 and 8 dated 16.5.2012. P.W. 4 SIP Zulfiqar AIi was examined at Ex.6, while P.W. 5 Ravi Kumar Motiani was examined at Ex.7. P.W. 6 SIO, Mohammad Mubeen was examined at Ex.8, who produced copy of order of DIG South Karachi as Ex.8/A, copy of application submitted to Jail Superintendent as Ex.8/B, photo copy of passport of accused as Ex.8/C and daily diary No.21 as Ex.8/D. Thereafter , prosecution side was closed vide statement Ex.9.
5. Statement of the accused was recorded under Section 342, Cr.P.C. vide Ex.10, wherein he denied prosecution allegations being false and claimed to be innocent and prayed for acquittal. He produced certain documents relating to business transaction between him and the complainant vide Ex.10/A to Ex.10/I. However , he did not examine himself on oath under Section 340(2), nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide judgment dated 22.08.2013 convicted the accused / respondent for an offence punishable under section 489-F , P.P.C. and sentenced him to undergo RI for two years and to pay fine of Rs.30000/- and in case of non-payment of fine, to suffer RI for 02 months more; however , benefit of Section 382- B, Cr.P.C. was extended to him. Against said judgment, accused / respondent preferred Criminal Appeal which was allowed, the judgment of the trial court was set aside and respondent No.2 was acquitted. Against said judgment of acquittal, appellant / complainant preferred a Criminal Revision Application which was subsequently , converted into Cr. Acquittal Appeal by this Court vide order dated 12.2.2016.
7. I have heard learned counsel for the appellant, learned counsel for respondent No. 2/accused as well as learned A.P.G. appearing for the State and have gone through material made available before me on the record.
8. Learned Counsel for the appellant submitted that learned Additional Sessions Judge while passing impugned order has failed to appreciate the oral as well as documentary evidence brought on record which warrants conviction. According to him, learned Vth Judicial Magistrate rightly convicted accused / respondent No.2. He further contended that the Appellate Court wrongly set aside the conviction and sentence awarded to respondent No.2 holding that the dispute between the parties was of civil nature and that it would be proper for the applicant / complainant to approach civil court for redressal of his grievance and criminal proceedings were not warranted.
According to him, Honourable Supreme Court has held that criminal as well as civil proceedings can be initiated simultaneously . He further contended that learned Appellate Court has also erred while dealing with the point of missing of three cheques from the cheque book from which the cheque in question was issued by respondent / accused. According to him, even this shows mala fide on the part of the respondent/accused and establishes that he used to adopt such tactic in order to defraud people and to achieve illegal gain for himself. According to him, all the ingredients for attracting the offence under section 489-F . P.P.C. were available in the case and the trial Court rightly convicted the respondent/accused. He further contended that learned Appe llate Court also erred in holding that summary suit filed by appellant/ complainant was dismissed for non-prosecutio n therefore, his claim in criminal proceedings has no value in the eye of law. According to him, while holding so appellate Court failed to consider that respondent / accused in the summary suit did not deny that different amoun ts in U.S. dollars were paid by accused during the period -2002 to 2012, hence it is proved that the cheque in question was issued by him with dishonest intention. Learned counsel has also filed written synopsis and in support of his contentions placed reliance upon the cases reported in 1991 MLD 1, 1991 SCMR 2300 , 2001 MLD 1277 , PLD 1995 SC 45, 2001 MLD 1169, 2004 YLR 2748 and 2013 YLR 1798 .
9. Conversely , Mr. Maqbool Ahmed, Advocate for Respondent No. 2. supported the impugned judgment of acquittal passed by learned Additional Sessions Judge. He focused upon page-87 of the Court file whereby the appellant/ complainant had admitted in his cross that an amount of 23,600 U.S. Dollars was received by him from the Respondent No. 2 through various bank accounts. He next submitted that certain amount, as claimed by the appellant, was also paid by Respondent / accused to him through different banks and in support of this, he has annexed copies of such transaction issued by the banks which are available at pages 135 to 143 of the Court file.
He placed reliance on the cases reported in 2019 PCr.LJ 295, PLD 2011 Lahore 52 and 2001 SCMR 90. He, therefore, submitted that the trial Court has wrongly convicted the respondent; however , the appellate Court while appreciating the material available on the record and reappraising the eviden ce, has rightly acquitted him, therefore, impugned judgment does not suffer from any illegality or infirmity which may warrant inference by this Court. He prayed for dismissal of the acquittal appeal.
10. Learned A.P.G. appearing for the State, while supporting the impugned judgment, contended that the impugned judgment has been passed after discuss ing each and every point involved in the case and cogent and sound reasons have been assigned by learne d Appellate Court for acquitting the respondent/accused. She further contended that the criteria for deciding a Criminal Appeal filed against acquittal are totally different from that of a Criminal Appeal against conviction. According to her, in the acquittal appeal presumption of double innocence is available and only in exceptional cases the judgment of acquittal is converted into a judgment of conviction. She also prayed for dismissal of the appeal and maintaining the impugned judgmen t of acquittal. In support of her contention she has placed reliance upon the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme 'Court 1 1) and submits that 'no case for interference by this Court is made out.
11. The offence alleged against the respondent / accused falls under section 489-F , P.P.C. Before proceeding further , it would be advantageous to examine the ingredients of the said section, contents whereof are reproduced hereunder: "489-F . Dishonestly issuing a cheque .---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."
12. From the bare reading of above provision of law it appears 'that for attracting the said provision of law certain preconditions are required to be fulfilled i.e. (i) issuance of cheque; (ii) that such issuance of cheque was with dishonest intention; (iii) that the purpose of issuance of the cheque should be with the aim to repay a loan or to fulfill an obligation and (iv) that ,on presentation, the cheque is dishonoured.
13. Now examining the instant case in the light of above, it seems that there is no dispute so far as first and fourth preconditions are concerned, as the same have been admitted even by the respo ndent / accused himself and he does not dispute the issuance of cheque in question, so, also the fact that the same was dishonoured on its presentation before the concerned bank. In his statement recorded under section 342, Cr.P.C. while answering Question No.1, he replied, "............. I issued the cheque with honestly , bonafidely for the security purpose,...".
However , he has vehemently denied that the issuance of the said cheque was with dishonest intention and that it was issued for the purpose of repaying any loan or fulfilling an obligation on his part.
14. So far as remaining two conditions are concerned, it seems that the plea taken by the respondent / accused was that the cheque in question issued by him was not towards re-payment of any loan or for fulfillment of an obligation as the same was given to the appellant / complainant for security purpos e in the year 2006, whereas the stand taken by the complainant / appellant is that the said cheque was given to him in the year 2012 towards the dues outstanding against the accused. From the evidence of the complainant / appellant it appears that he has deposed as under: "He has plastic molding company in Korea. He relate with the accused since 2004. The accused purchased road reflector CATS EYES from me at Korea; 1 send the CATS EYES to the accused at Pakistan of 300,000/- Dollars. I contacted with the accused for payment of the said cats eyes but accused not paid the amount of cats eyes to me, thereafter , I came at Pakistan and went at the house of accused at Karachi. The accused handed over me two cheques of Rs.50,000/- dollars each and one cheque of 34000/- dollars to me. The accused asked me that the said cheque deposited one by one after passing time at about one year. I went at Standard Chartered Bank Karachi situated at teen talwar for encashment but the same cheque was not encashed and dishonored that no any amount was available in the account of accused, bank issued me memo with reasons no any amount was available in the account of accused. I came at about 27/28 times in Pakistan for the payment from the accused and met with him but the cash not handed over me by the accused, in the year 2012 I came at Pakistan seven times. On 22- 03.2012 I submitted the application to the SHO of P.S. Boat Basin for legal action against the accused, thereafter on 04.05.2012 I lodged the FIR against the accused.
15. In his cross-examination he made following admissions: "It is fact that I not produced the documents of the cats eyes before this court..... ... It is fact that in initial stage I made contact with the accused that the cats eyes were sent from Korea and accused sale out the material to various companies and after receiving the payment handed over to me.... It is fact that Kim Jong Seo is my real son. It is fact that at about 23600 dollars received by me from the accused in different dates in the account of my son, VOL: says that the said amount was sent by the accused in the payment of another material and not send the amount in the payment of cats eyes, again VOL: says that the some material sent to another person namely Noyioungman, the said material was sale out by the present accused and send me payment of the said material It is fact that I not given any notice to the accused but I contacted many times on his mobile but accused not attended the same...."
16. On the face of it, the statement made in his evidence by the complainant / appellant appears to be vague and sketchy . Neither he has given any specific date when the alleged transaction of EYE CATS took place between him and the accused, nor has he given the details of the such business transaction or produced any document in respect of such transaction. His evidence starts from the fact, "He relate with the accused since 2004 " and immediately thereafter he deposed, "The accused purchased road reflector CATS EYES from me at Korea, I send the CATS EYES to the accused at Pakistan of 300,000/- Dollars". This gives a strong impression that the said transaction took place, if not in the year 2004, then at least a little thereafter which also gets support from the fact that in his counter affidavit filed against the application for leave to defend moved by the accused in Summary Suit No.54/2012 filed by the complainant / appellant, in para 3 (iii) he specifically stated, "It is submitted that the Plaintiff, on the request of the Defendant, sent three container containing Reflectors (CATEYE) to the Defendant in the name of M/s. M20 as his own Firm M/s. ROAD TECH (PVT) LIMITED, according to his saying, was not registered.
The Plaintiff sent the aforesaid container in the year 2007. .." Thus, it appears that the said transaction took place in the year 2007. In this view of the matter the stand taken by the accused that he had issued the said cheque as security in the year 2006 is strengthened, because normally in case any huge business transaction takes place, certain security is deposited by the party who takes the goods.
17. It is also note-worthy that although the complainant / appellant in his deposi tion has stated that he came in Pakistan 27/28 times and in the year 2012 he visited Pakistan seven times, for the purpose of receiving payment from the accused but not a single docum ent has been produced by him to establish such fact. Bare words not supported by any documentary / tangibl e evidence cannot be accepted. Beside s, in his cross-examination the complainant has specifically admitted, "It is fact that Kim Jong Seo is my real son. It is fact that at about 23600 dollars received by me from the accused in different dates in the account of my son." However , he made a strange explanation for this by voluntarily saying , "the said amount was sent by the accuse d in the payment of another material and not send the amount in the payment of cats eyes, again VOL.. says that the some material sent to another person namely NOyioungman, the said material was sale out by the present accused and send me payment of the said material ." It is not understandable that when the material was sent to or by one NOyioungman, then in what capacity the accused sold out the said material and sent its sale proceeds to the complainant through bank account of his son. All such vague / contradictory statements put dents in the prosecution case and create serious doubts therein.
18. In his aforesaid counter filed by the complainant in the abovesaid Summary Suit, in the same para i.e. 3(iii) he admitted to have received certain payme nts from the accused towards the sale of CATS EYE by admitting, "The Plaintiff sent the aforesaid container in the year 2007 and the Defendant paid to the Plaintiff US Dollars 5000 on 21.12.2009 and US Dollars 3000/- on 2202-2010, US DOLLARS 5000 on 14-102012 through R.B.S. Bank Pakistan and he paid to the Plaintiff US Dollars 3000/-on 06-02-2010, US Dollars 9600/- on 18-05-201 1 through Faysal Bank Pakistan and the Defenda nt paid to the Plaintiff US Dollar 16400/- in cash while the Plaintiff in Karachi from Korea ." Now it seems that, according to the comp lainant, the accused issued cheque in question on 15-03-2012 which was presented by him on the same date i.e. 15.03.2012 which fact is also confirmed by P.W. 5 Ravi Kumar Mutiani, Bank Manager , in his evidence. This also negates the plea taken by the complainant that the accused issued the cheque in question with dishonest intention, because if the accused had any dishonest intention, then as to why he continued to make payment through R.B.S. Bank and Faysal Bank, particularly even after lodging of the FIR on 14-10-2012 for an amount of US DOLLARS 5000, as admitted by the complainant himself.
19. The plea of the accused that he had issued the cheque in question in the year 2006 for security purpose and not in the year 2012 also gets support from the fact that the said cheque is of Union Bank and P.W. 5 Ravi Kumar Mutiani, Bank Manager , in his cross-exam ination clearly admitted, "The Union Bank was acquired by the Standard Charter bank in the year 2006 ." It is not understandable as to why, after acquiring of ' The Union Bank' by 'Standard Charter Bank' in the year 2006, the accused would keep the cheque book of Union Bank with him for such a long period. However . if the plea of the accused that he had issued the said cheque in the year 2006 for security purpose is accepted, then it would cope with the subsequent events, as the accused had issued an undated cheque for security purpose only which was kept by the complainant and then used in the year 2012 which was got dishonoured by presenting the same after about six years. This also gets support from the observation of the learned Additional Sessions Judge made in the impugned judgment to the following ef fect: "I have examined the said cheque which is available at Ex 3/E of the R&P in which the hand writing of the date is different, than the hand writing of the Issuer , so also the colour of the pen used for date is darker than the colour of the pen used to fill up the name and other ingredients of the cheque as well as of the signature."
20. In view of above, it can safely be held that even the other two preconditions for attracting section 489-F , P.P.C. are also missing in the instant case and it appears that the cheque in question was issued by the accused, not with any dishonest intention, in the year 2006 for purpose of security only and not to repay a loan or to fulfill an obligation.
21. In the case reported as Major Anwar-ul-Haq v . The State (PLD 2005 Lahore 607 ) it was held as under: "9. Section 489-F of P.P.C. came about on 20.5.2002 and was introduced to the statute book in the year 2002 with the sole purpose to curb fraud and disho nesty which has to be established on a case to case basis. But where there were business transactions, genuine disputes and contractual obligations, an offence may not be the intention.
10. The rational behind the enactment of section 489-F , P.P.C. does not call for a mechanical action immediately when a cheque is returned by a banker but is to be used only where, prima facie the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan. The past conduct of the party being also a factor to be seen."
22. In another case of Raza Khan v . M. Abid Khan [Peshawar] reported in 2014 YLR 90 , it was held as under: "8. The element of dishontesty to constitute an offence under section 489-F , P.P.C. is the requirement in cases where cheque has been given for the adjustment/repayment of loan and not the cases where it is given as security .
Cheque dishonoured in every eventuality may not constitute an offence under Section 489-F , P.P.C."
23. In this view of the matter it seems that the Appellate Court rightly acquitted the accused by observing as under: "I have heard the arguments of the respective parties and, also perused the record so also the impugned Judgment dated 22.8.2013, passed by the learned Vth Judicial Magistrate, Karachi South. According to which a Cheque No. 4350397 was issued by the present appellant, but the date of issuance and purpose of issuance is the main dispute in this case. I have examined the said cheque which is available at Ex 3/E of the R&P in which the hand writing of the date is different, than the hand writing of the Issuer , so also the colour of the pen used for date is darker than the colour of the pen used to fill up the name and other ingredients of the cheque as well as of the signature. Moreover the plea of substandard material was also taken by the appellant in cross-examination of PW-1 Complainant and the plea of handing over the cheque as security purpose is also raised in the cross-examination of PW1, as it was an argument of the learned counsel for the complainant that such plea was not raised at the time of cross-examination before the trial court. The business transaction is also admitted by both the parties and it is also admitted that there was no written agreement of such business transaction. The learned counsel for the appellant rightly pointed out that trial court at the Page 11 of the Judgment hold that the cheque was issued for re-payment of loan by the appellant is not according to the evidence on record. No doubt the Summary Suit No.54/2012 was filed by the complainant, but the same was dismissed in non-prosecution and it is admitted by the complainant in Sub-Para (iii) of Para No. 3 in the Counter Affidavit, Leave to Defend that different amounts in US Dollars were paid by the appellant from year 2009 to year 2012. It is also admitted position that both the parties not issued any legal notice against each other for this business transaction. The trial court while deciding this case not considered documents placed on record at the time of recording Statement under section 342, Cr.P.C. of the appellant, according to which the bank statement for period of 1st January 2006 to December 2006, showed the cheque number 4350393 and the bank statement for the period of 1st January 2007 to 15th September 2007 showed the withdrawal of cheque number 4350398, whereas the number of disputed cheque in the appeal in hand bears number 4350397 and number of the disputed cheque is in between of those cheque numbers, which were issued from year 2006 to September 2007 and it was also admitted by the PW-5 (Ravi Kumar Motiani), the Bank Manager , in his cross-examination that Union Bank was acquired by the Standard Chartered Bank in the year 2006 and I am of the view that when the Standard Chart ered Bank owned the Union Bank, the cheque book must be of Standard Chartered Bank and issuance of cheque of Union Bank shows that such cheque was issued at the time, when the Union. Bank was not acquired by the Standard Chartered Bank......
In view of above case law as well as discussions, I reached to the conclusion that infact there was a business transaction between the parties and verbal contractual obligations were also in existence, which was admitted by both the parties, therefore, the proper remedy with the complainant was to approach the Civil Courts for redressal of his grievance and not the criminal proceedings as intention to issue the cheque with dishonesty is doubtful. Therefore, the appeal in hand is allowed and the conviction/ sentence is set aside, and appellant/accused is acquitted."
24. It would be pertinent to point out at this stage that the consideration for deciding a Criminal Appeal against acquittal are quite difference from that of a Criminal Appeal against conviction as in the former case presumption of double innocence of the accused is available in the case. It is a settled principle of law that the superior Courts act slowly in interfering with an order of acquittal, unless grounds for acquittal are perverse, wholly illogical or unreasonable. Reliance can be placed upon the case of Muhammad Asghar and another v. The State (PLD 1994 Supreme Court 301).
25. In the case reported as Mirza Noor Hussain v. Farooq Zaman and 2 others (1993 SCMR 305) it was held by the Honourable Supreme Court as under: ".......the judgment of the trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unless ... ....that the findings......are 'artificial', 'shocking, 'ridiculous', 'based on misreading of evidence' and 'leading to miscarriage of justice'."
26. In another case reported as Yar Mohammad and 3 others v. The State (1992 SCMR 96) Honourable Supreme Court observed as under: "Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty , there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
27. In the case of Ghulam Sikandar and another v. Mamaraz Khan and others reported in PLD 1985 SC 11 it was held as under: " .........The Courts often in such like difficult situation have applied test of "impossibility" by asking questions; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place." and "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible." And "The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
28. The case-law relied upon by learned counsel for the appellant are of no help to the appellant as the facts of the cited cases and that of the instant case are distinguishable. Needless to emphasize that under the criminal administration of justice, each criminal case is to be decided on its own merits.
29. The upshot of above discussion is that Judgment dated 01.09.2013 passed by learned IInd Additional Sessions Judge, Karachi South, whereby he allowed Criminal Appeal No. 24 of 2013 thereby setting aside the Judgment of conviction dated 22.08.2013 passed by learned Vth Judicial Magistrate, Karachi South in Cr. Case No.2345 of 2012 arising out of FIR No.233/2012 registered at Police Station Boat Basin ACLC, Karachi under section 489-F , P.P.C., and acquitted respondent No.2, Kim Chong Bae, is hereby maintained. Consequently , the acquittal of the accused / respondent No.2, Kim Chong Bae recorded by the Appellate Court, is declared to be in accordance with the law .
Appeal against acquittal is hereby dismissed