M UHAM M AD IQBAL KALHORO, J. Petitioner registered three FIRs bearing Crime Nos.171 to 173, under section 489-F, P.P.C. at Police Station Gizri, Karachi against respondent No.3, Muzaffar Ali Sheikh, his business partner, doing business in garments. At some point in time, dispute arose between them over business accounts and profits, which respondent No.3 settled by giving him three cheques of Rs.7,500,000/-, one of Rs.3,500,000/- and one of Rs.2,500,000/-. When petitioner presented the same for encashment in the relevant bank were dishonored spurring him on to seek remedy by registering FIRs. After investigation, on the basis of material showing that the accused had paid petitioner amounts mentioned in the cheques through pay orders, etc., FIRs were recommended for disposal under 'B' class.
2. Notwithstanding, on the orders of Additional Inspector General of Police, a fresh investigation was undertaken by another police officer SIP Zulfiqar Haider, who too came to same conclusion and submitted report before the Magistrate concerned disposing of the case under 'B' class. Before the said Magistrate petitioner appeared and was afforded an opportunity of hearing, yet learned Magistrate agreed with two IOs and disposed of FIRs but under 'C' class, which orders petitioner has impugned in these petitions.
3. We have heard learned counsel for the petitioner, who has stated that all the three FIRs were disposed of although by separate orders, but they are in fact replica and ditto copy of each other.
The material presented by the complainant was not considered; the documents submitted in defense were tampered and manipulated, which fact lost sight of the learned Magistrate at the time of passing impugned orders. Complainant had given more than Rs.2.0 Crore to the accused for investment purpose in the year 2010, which neither had he retuned nor profits thereon were paid to the petitioner. On demand, the accused gave him the cheques were dishonored and the entire amount has been gobbled up by the accused. These facts have not been appreciated by the Magistrate and therefore this is a good case for remand for reconsideration of the material and passing a fresh order.
4. On the other hand, learned Addl. AG Sindh and learned Add. PG Sindh both have opposed these petitions stating that the documents referred by the learned counsel for the petitioner have already been considered by two IOs, besides learned Magistrate, who all have come to a same conclusion.
5. We have considered submissions of the parties and perused material available on record including impugned orders. As per story, accused Muzaffar Ali Sheikh and petitioner were business partners. Former issued latter five cheques, three of Rs.75,00,000/-, one of Rs.35,00,000/- and of Rs.25,00,000/-. It was found in the investigation that two cheques of Rs.7,500,000/- were cleared and the amounts deposited in the account of petitioner. Against one cheque of Rs.75,00,000/- eight pay orders were given to the petitioner by accused that were cleared and amount was found deposited in the petitioner's bank account.
6. It was discovered further that accused had given 4000 pounds i.e. Rs.8, 5000/- to a son of petitioner at UK towards his fee and one cheque of Rs.11,5000/-. On the basis of, among others, such evidence, FIRs were disposed of under 'B' class and submitted before the Magistrate concerned, who agreed with the opinion of the IOs qua disposal of the cases however did it in 'C' class (insufficient evidence) instead of 'B' class (false information). The core argument of learned defence counsel to defeat findings of the IOs and the Magistrate is that the amounts received by the petitioner were not for adjustment of amounts of cheques but were paid to him as profits on his investment. However, he has not produced any agreement containing necessary detail of ratio of profit he was entitled to or percentage of his share in the whole business, value of stock in trade, overall profits or losses, if any, etc. to calculate his profit with reference thereto and appreciate his point. Nor he has presented any figure of how much business, during interregnum of five years between investment and return of amounts, he and accused were able to do to make a determination on the basis thereof. He has not cited any reason either as to why for five years he was silent and did not ask for profits or refund of investment. In fact, no material: any agreement to that effect-- confirming that money was given to the accused as investment has been produced by the petitioner in support of his case.
7. Learned defense counsel in his arguments has hit authenticity of pay orders and other documents that confirm return of amounts to him, which plea albeit is incongruent to his claim that amounts were given to him as profits, but since there is no determination by any forum upholding such theory, no such finding in these proceedings held without benefit of recording evidence can be made. Further two IOs found money deposited in the account of petitioner by the accused sufficient to satisfy more or less his claim. The same evidence when was submitted before the learned Magistrate, he too after scrutiny of material and affording parties an opportunity to present their respective cases agreed with them and disposed of the cases but in 'C' class. He has further observed in the impugned orders that petitioner has filed a suit for recovery of subject amounts, which is also pending. And that the dispute between the parties appears to be of civil nature for settlement of account, which is yet to be determined. His observations and conclusion do not appear to be suffering from any illegality or miscalculation warranting any inference by this court in exercise of constitutional jurisdiction particularity when petitioner has an adequate remedy available in the shape of a direct complaint on the same cause of action.
8. We were in fact surprised to note that impugned orders were. passed in the year 2015 and hearing of the petitions have taken place in the year 2022 after almost seven years. But, meanwhile, the petitioner has never attempted to adopt remedy of direct complaint to seek justice (which he is doing, as per his own claim, through these petitions) and is still insisting on resurrection of FIRs disposed of seven years ago on the basis of lack of evidence. We may observe, in addition, that offence under section 489-F, P.P.C. is made out only when the dishonored cheque is issued in repayment of loan or fulfillment of an obligation. Since, as per material, obligation, if any as it is yet to be determined in the civil suit between the parties, already stood fulfilled, constituents of section 489-F, P.P.C. are conspicuously missing. The FIRs have been rightly disposed of in our view and we therefore find no illegality in the E impugned orders and dismiss these petitions with no order as to costs. Notwithstanding, the observations as above will have no effect, whatsoever, over proceedings of civil case pending between the parties.
The petitions are accordingly disposed of Office to place a copy of this order in all connected petitions.