ABDUL MAALIK GADDI, J.--This Criminal Acquittal Appeal is direct ed against the Judgment dated 18.02.2017, passed by the learned XIIth Judicial Magistrate Karachi-East, whereby he has acquitted the accused/Respondent No.1 (Tanveer Iqbal) by extending him benefit of doubt. The Appellant having aggrieved and dis-satisfied with the impugned Judgment has filed instant Appeal.
2. Precisely , the facts of the prosecution case are that on 10.10.2015 the Appellant! Complainant got registered FIR No.550/2015 at Police Station Gulshan-e-Iqbal disclosing therein that he was performing his duties at Messrs N-J Auto Industries Pvt. Ltd. as recovery officer. His Company manufactures Super Power Motorcycles and sale the same to dealers in the market and they used to receive payments thereof through cheques. His company had supplied Motorcycle to Azad Tanveer who was the owner of "Tassawar and Sons" who issued one cheque bearing No.23656934 of Rs.1,56,000/- (Rupees One Lac Fifty Six thousand) to the Appellant for payment of amount in connection to purchasing of Motorcycles on 10.11.201 1 and when said cheque was presented in the concerned Bank the same was dishonored.
3. After framing of formal charge, the prosecution had examined PW-1 Complainant Muhammad Asif at Ex.03 who produced cheque and cheque return memo, memo of site inspection, Authority Letter and copy of FIR at Ex.1/1 to 1/5 respectively . PW-2 Syed Ahmed Saee d Naqvi (Sale Officer) in N-J Autos. PW-3 Aijaz Ahmed. I.O. of the case Ex.5 who produced application moved by Complainant to him, letter sent to Bank for verification and verification from Bank at Exs.5/A to 5/C. It appears that prosecution has not examined PW Rao Aslam vide his statement at Ex.6. These witnesses have been duly cross-examined by the counsel for the Respondent, thereafter ADPP closed his side vide statement at Ex.7.
4. The statement of accused/Respon-dent was recorded under section 342, Cr.P.C. at Ex.8 in which accused/ Respondent has denied the allegation of the prosecution case, however the accused neither examined himself on oath nor lead any evidence in his defence.
5. After appraisal of evidence adduced at the trial, the learned trial Court passed the impugned Judgment which is impugned before this Court.
6. Mr. Ahmed Ali Ghumro learned counsel for the Appellant contended that Judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the Respondent are not supportable from document and evidence on record. He further submitted that the Respondent No.1 has been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which Respondent No.1 could be acquitted. He further contended that the learned trial Court has based its finding of acquittal merely on the basis of minor contradiction on non-vital points in the statement of prosecution witnesses and that the prosecution evidence has not been properly appreciated; That the Respondent No.1 had issued cheque but subsequently when it was presented before' the concerned Bank the same was dishonored as such according to him the Respondent No.1 has committed cheating and forgery with the Complainant as such liable to be punished.
7. Mr. Abrar Ali Khan learned A.P.G. has argued that in this matter the cheque was bounced which was issued by the Respondent No.1 however he further submits that appeal filed by the Appellant appears to be time barred and case may be decided as per law .
8. I have considered the submissions advanced at the bar and have perused the evidence produced in trial Court with the able assistance of the advocate for the parties.
9. After hearing the learned counsel for the parties and after going through the record, I have come to the conclusion that prosecution has failed to prove its case against Respondent No.1 for the reasons that alleged cheque was issued to the Complainant/Ap pellant for encashment on 10.11.201 1 and the said cheque was bounced on its presentation but the FIR of the said incident was lodged on 10.10.2015 after the delay of about four years, during the course of arguments, I have specifically asked the question from learned counsel for the Appellant to explain the inordinate delay in lodging of FIR, he has no satisfactory answer with him, therefore false implication 01 the Respondent No. 1 in this case with due deliberation could not be ruled out.
10. On perusal of record it appears that the alleged cheque has been issued by Tassawar and Sons but FIR has been lodged against the Respondent No.1 (Tanveer Iqbal). Nothing on record whether Tanveer Iqbal was operating the said Bank account and whether the signature on alleged cheque pertains to Respondent No.1 or otherwise. In this matter concerned Bank Manager has not been examined. He was best witness to prove the particular facts but he was kept away for the purpose of evidence, the reasons best known to the Appellant. It is settled law that if best evidence is available and the same is kept away , the adverse influence would be drawn.
11. It is noted that FIR has been lodged by the Appellant against Respondent No.1 on the basis of Authority letter issued to him by N-J Auto Industries Pvt. Ltd., on record of the trial Court at Ex.1/4. On perusal of contents of this letter it reveals that no Authority was given to him to give evidence in this case. When this infirmity/ lacuna was brought into the notice to the counsel for the Appellant for reply the same, he has no satisfactory answer with him.
Even otherwise the evidence of appellan t is based on hearsay evidence which cannot be safely relied upon for conviction.
12. On perusal of record it reveals that there was business transaction between the parties, therefore, on perusal of Section 489-F , P.P.C. reveals that the said provision will be attracted if the following conditions are fulfilled. i). Issuance of cheque; ii). Such issuance was with dishonest intention; iii). The purpose of issuance cheque should he; a). to re-pay a loan; or b). to fulfill an obligation (which in a wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance; iv). On presentation, the cheque is dishonored.
In the case in hand, Complainant/ Appellant has lodged the FIR on the basis of alleged cheque but he has not brought forward any documentary proof which would substantiate that the said cheque was issued for fulfillment of any obligations or re-payment of loan. It is by now a well settled principle of law that mere issuance of cheque which was subsequently dishonored does not constitute an offence unless it is establish that the same was issued with dishonest intention for re-payment of loan or for discharging of an obligation which are missing in this case.
13. I have gone through the impugned Judgment passed by the Presiding Officer of the trial Court who dealt with all aspect of the matter quite comprehensively in the light of all relevant laws dealing with the matter and now before me learned counsel for the appellant was unable to demonstrate that the impugned Judgment by any means suffers from any illegality or miscomprehension or non-appreciation of evidence by way of documents available on record.
14. So far as the appeal against acquittal is concerned, after acquittal, accused has acquired double presumption of innocence. This court would only interfere if the Judgment/ Order was/ is arbitrary , capricious or against the record. But in this case there are number of infirmities as stated above. No illegality has been pointed out in the impugned Judgment, therefore, I while relying upon case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo reported in 1993 SCMR page 585 dismissed this appeal along with listed applications.