1. ' HAMID ALI MIRZA, J.--- This is an appeal under section 10 of offences in, respect of Banks (Special Court) Ordinance, 1984 whereby the appellant 'as per judgment of conviction, dated 25-11-1998, passed by learned Special Judge (Offences in Banks) Sindh, Karachi, in Case No,62 of 1998 (State v.
2. Pervaiz Alam and another) is convicted under section 420/109, P.P.C., and sentenced to R.I. Till rising of the Court giving him benefit of five years, five months and sixteen days under section 382-B, Cr.P.C., which period he remained in jail and to pay fine of Rs,60,00,000 or in default .In payment of fine to undergo R.I. For 1.1/2 years and in case the fine is recovered the same shall be paid to bank, in case the appeal filed by the bank against the order of Wafaqi Mohatasib is dismissed by the President of Pakistan and in case the appeal is allowed, the payment shall be made to the affected persons to the extent of loss sustained by them.
3. ' The brief facts as disclosed in the F.I.R. No,8 of 1992 registered under section 420/109, P.P.C., read with section 5(2) of Act II of 1947 against the present appellant and one co-accused Zargham Haider Jaffri, the then Manager, National Bank of Pakistan, NOR Complex Branch, Karachi, are that the appellant/accused Pervaiz Alam had collected huge amounts from various persons as per details mentioned in the F.I.R, on the false pretext of business and investment with the connivance of co-accused (since deceased) Syed Zargham Haider Jaffri, Manager National Bank of Pakistan, NOR Complex Branch, Karachi, and the appellant/accused had issued post-dated cheques to the parties from whom he had obtained money which cheques were duly endorsed by co-accused Syed Zargham Haider Jaffri as "good for payment" but when the said cheques were presented on due dates to the bank same were not honoured, So far the co-accused Syed Zargham Haider Jaffri, the then Manager of the said bank, he had introduced the accounts of appellant Pervaiz Alam under different titles in respect of three accounts. However, the appellant neither returned the money to the parties nor the profit wu paid, in the said circumstances, the appellant in collusion with the said co-accused cheated Mat, Manzoor Fatima, M/s. Syed Hassan Aijaz Kazmi, Syed Ehsan Aijaz Kazmi, M M. Khan, Shaikh Abdul Aziz of their money. After registration of F.I.R., case was challaned before the Special Court constituted under Ordinance IX of 1984.
4. ' Initially co-accused Syed Zargham Haider Jaffri was tried in Case No,3 of 1993 wherein the present appellant was shown as an absconder. After the arrest of the present appellant, he was produced in Court and on 10-6-1993. Trial Court ordered the separate trial of the appellant as the case of the co-accused Syed Zargham Haider was completed. Charge against the appellant was separately framed and prosecution also re-examined ten P.Ws. The Trial Court framed the charge against the appellant on 28-6-1993 which read as under:- "That during the year 1989, you in collusion with co-accused Zargham Haider cheated several persons namely Manzoor Fatima, Ehsan Aijaz Kazmi, Syed Hassan Aijaz Kazmi, M.M. Khan, Shaikh ' Abdul Aziz and Qurban Rabbani by pursuading them to invest money with you by issuing poet- dated cheques which were dishonoured and thereby committed offences punishable under section 420/406, P.P.C., and within my cognizance."
5. ' The above charge was read over to the appellant/accused who pleaded not guilty, consequently prosecution re-examined P.W.1 Syed Abid Ali (Exh.3) who was shown original Exhs.7, 8 and 9 of account opening form produced in Case No,3 of 1993 of co-accused Zargham Haider the photo copies of which he produced as Exhs.4, 5 and 6, so also the memos, Exhs.7/A, 7/B, 8/A, 8/B, 9/A and 9/8 whereby the cheques were dishonoured and photo copies of three cheques as Exhs.10, 11 and 12 with endorsement "Good for payment", statement of account (Exh,13), copy of ledger showing debit balance, copies of cheque reference register (Exhs,9/A and 9/B), seizure memo. (Exh 14), This witness was confronted with a cheque return memo. (Exh,27/A), dated 27-8-1990, entries (Exh.15), P,W,2 Muhammad Maqbool Butt A.V.P. Of Regional Office (Exh,16) re-examined, P,W.3 Mrs, Zarina MaJeed (Exh.17) who was shown photo copy of agreement (Exh,22), deed (Exh.23) and sale-deed (Exh,24), photo copy of guarantee form (Exh.25) produced In connected Case No,3 of 1993, P.W,4 Aba Qusim was re-examined (Exh.18), P.W,5 Muhammad Murtaza Khan re-examined (Exh.19) who produced original cheques and photo copies kept on record (Exhs,19/A, 19/B and 19/C), he was also shown cheques return memos, (Exhs.27/A, 27/B and 27/C) photo copies kept on record, original produced In Case No,3 of 1993), Exh.19/D a copy of agreement was got produced by the defence in the cross through this witness, so also copy of notice (Exh,19/E), letter (Exh,19/0); P.W.6 Sheikh Abdul Aziz (Exh,21) was re-examined, he was shown three cheques produced in Case No,3 of 1993 and produced photo copies of the same as Bxhs.21/A, 21/B and 21/C, photo copy of agreement (Exh,21/D), photo copies of slips returning cheques (Exhs.7/A, 7/B, 8/A, 8/B, 9/A and 9/B), photo copy of seizure memo. (Exh.21/E), photo copy of A.D. Receipt (Exh,21/F); P.W,7 Abdul Aziz Ansari (Exh,22) was re-examined who produced photo copies of the cheques (Exhs.22/A, 22/B and 22/C) as originals were produced in Case No,3 of 1993; P,W.8 Qurban Ahmad Rabbani (Exh.23) was co- examined who produced photo copies of cheques (Exhs.23/A, 23/B and 23/C) as originals were produced in Case No,3 of 1993, he also produced photo copies of slips returning cheques (Exhs.23/D, 23/E and 23/F), photo copy of finding and recommendation of Wafaqi Mohatasib (Exh.23/F), cheque (Exh.23/H) produced in the cross by the defence counsel through this witness, application (Exh.23/J), photo copy of plaint (Exh.23/K); P.W.9 Met. Manzoor Fatima (Exh,24) was re- examined who produced application (Exh,25), copies of three agreement of partnership (Exhs.26, 27 and 28) as originals were produced in Case No,3 of 1993, P.W,10 Abdul Hameed Pathan (Exh,30) was re-examined who produced complaint (Exh.30/1), copy of remand order (Exh.30/2), photo copy of written complaint of Shaikh Abdul Aziz (Exh.30/3), memo. Of handing over and taking over (Exh.30/4), photo copy of F.I.R. (Exh.30/5) and other documents (Exh.30/6 to Exh.30/20).
6. ' The appellant was examined under section 342, Cr.P.C., (Exh.32) who produced with his statement photo copies of the citation of case-law (Exh.32/A to Exh.32/E), photo copy of diary sheet of Special Judge Central Karachi (Exh.32/F), photo copy of application (Exh.32/G), list of citation (Exh.32/H) and other fifteen documents as Exhs.32/I to 32/W.
7. ' We have heard the learned counsel for the appellant and learned Dy.A.-G. And perused the record and proceedings of the case.
8. ' The learned counsel for the appellant has raised the following contentions:---
(i) That the Trial Court has no jurisdiction as no complaint was lodged by the bank and no loss was sustained by the bank and no offence in connection with the business of the bank was committed;
(ii) Sentence of fine imposed by the Trial Court could not have been awarded towards compensation as no loss was caused to the bank because of the alleged offence;
(iii) Dishonoured cheques were not put to the appellant in his statement under section 342, Cr.P.C.;
(iv) Charge framed was defective and was violative of section 232/233/ 234 of Cr.P.C.;
(v) F.I.R., was belated, therefore, was in violation of section 173 of Cr.P.C.; and
(vi) Mere execution of post-dated cheques would not constitute criminal offence.
9. ' Learned Dy.A.-G. Has submitted that Trial Court had jurisdiction to proceed with the trial of the case as the offence committed by the appellant was in connection with the business of bank and further that fine imposed by the Trial Court towards the compensation was justified and legal as loss was caused to the bank who was directed to pay the same by the Federal Ombudsman to the affected persons and further the persons who suffered at the hands of appellant at the instance of co-accused bank employee because of endorsement "good for payment" who were entitled to sue the bank for loss sustained by them, sufficient evidence was produced including the postdated cheques issued by the appellant and mere fact that no specific questions with regard to the number and dates were put to the appellant/accused in his statement under section 342, Cr.P.C., when no prejudice was caused to the appellant would not vitiate the trial and judgment of the case and there was no material defect in the charge in violation of law; considering that even if only three transactions within a year are taken into consideration the charge would be legal and valid; consequently; the conviction would be sustainable. In view of the reliable documentary evidence adduced by the prosecution. He further submitted that in view of the facts of the case there was no delay in lodging the F.I.R. As it was only when it came to the knowledge of the concerned authorities at the instance of the aggrieved persons, criminal law was set into motion and further that every post-dated cheque would not constitute only civil liability because each case is to be considered on its facts and its own merits.
10. ' The first contention of the learned counsel for the appellant is that Trial Court has no jurisdiction as no complaint is lodged by the bank and no loss was sustained by the bank, consequently, no offence in connection with the business of the bank is committed is devoid of merit and substance.
11. It may be stated that subsection (d) of section 2 of Bank (Special Courts) Ordinance, 1984 defines "schedule offence" means an offence specified in the First Schedule and alleged to have been committed in response or in connection with the business of bank. In the instant case, prosecution evidence would show that the appellant in collusion with the co-accused Syed Zargham Haider Jaffri, the then Manager of the Bank, issued post-dated cheques in favour of the affected persons, namely, Mst. Manzoor Fatima, Ahsan Aijaz Kazmi, Syed Hassan Aziz Kazmi, M.M. Khan, Shaikh Abdul Aziz and Qurban Rabbani when said co-accused Syed Zargham Haider Jaffri made endorsement on the reverse of the cheques stating therein "good for payment" who was holding the charge of Manager of the Bank. It may be pointed out that the affected persons would not have given money to the appellant but because of the inducement of the co-accused Syed Zargham Haider Jaffri who made endorsement on abovesaid post-dated cheques, therefore, the offence of cheating was facilitated and completed because of bank employee's assurance/inducement who had made endorsement and bank seal, hence, said offence was committed in connection with the "business of the bank" which expression being very wide and would also include the bank procedure, banking activities with regard to dealing with the customers and other persons with regard to the banking business. Reference may be made to A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 which runs:-- "The definition of scheduled offence as contained in section 2(d) of the Ordinance does include a rider to be to the offences which are mentioned in the Schedule and which undoubtedly are alleged in this case. The rider is that those offences should have been alleged to have been committed ' in respect of or in connection with the business of bank'. It needs to be emphasized that the expression 'business of a bank' used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words 'business' and the 'Bank'. These are 'in respect of or 'in connection with'.
12. The scrutiny of the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and, finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word 'Business' as separate from the word 'Bank'. Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors' dealings as well as dealings in trading and other enterprises are their business. There is no need to dilate upon the scope of the expressions 'in respect of and 'in connection with' any further.
13. ' In the light of what has been stated about the definition, in this case the allegations made against the accused undoubtedly involved the business of the bank more directly than by invoking aid from the expression 'in respect of or 'in connection with'. With respect, the approach of the High Court to find loss, compensation and other similar elements connected with the complainant, accused or the bank, would amount to reading much more in the definition itself than is justified either by the language used therein or even by the intendment underlying the same. The intention being that all conceivable situations, linked with the business of the bank, would make the offences mentioned in the Schedule as scheduled offences. Thus, to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences."
14. It would not be out of place to state here that prosecution evidence on record will show that the appellant and co-accused knew very well from the very beginning that there was no balance in the accounts of the appellant even then he issued post-dated cheques which would show mens rea of cheating on the part of the appellant that the aggrieved persons who paid the amount to be invested in the business by the appellant were being cheated. The appellant has not denied the factum of issuance of cheques in favour of the aggrieved persons from whom the money was taken on the false promise and inducement that they would be returned with profits and the said promise and inducement was believed by the said persons because of co-accused Syed Zargham Haider Jaffri (since deceased) who was then Manager of the bank and had given in writing that the said cheques were ' good for payment' thereby confirming that the appellant had sufficient funds in his accounts of the bank and made the said persons to believe that the bank would be liable and responsible for the payment to them. The above prosecution evidence on the said point has gone unrebutted and the evidence of P, Ws. Adduced by the prosecution could not be shattered even in the cross-examination by the learned counsel for the appellant. In the circumstances it cannot be said that the Trial Court had no jurisdiction to try the appellant/ accused alongwith the co-accused Syed Zargham Haider Jaffri (since deceased) who was the then Manager of the said bank.
15. ' The next contention of learned counsel for the appellant is that the sentence of fine could not have been awarded against the appellant by the Trial Court as to loss was caused to the bank because of the offence committed by the-appellant in collusion with the concussed Syed Zargham Haider Jaffri (since deceased) the then Manager of the bank.
16. ' We do not find merit and substance in the said contention as well. The admitted position in the case is that the post-dated cheques issued by the appellant were endorsed by co-accused Syed Zargham Haider Jaffri who was then Manager in the bank, consequently endorsement and seal of the bank made the affected persons to believe that bank would be liable and responsible for the payment to them. In the said circumstances, the said persons requested the bank to make payment because their employee, the then Manager, co-accused Syed Zargham Haider, Jaffri, has endorsed the cheques "good for payment" but having not been paid their money as per post- dated cheques they made complaint to the Wafaqi Ombudsman who was pleased to allow their request and passed direction to the bank as per Exh.23/G to make payment to the affected persons. Para.5 of Exh.23/G at page 367 of R&P reads as under:-- "In Pakistan there is generally no practice of such usage among bankers by marking cheques as 'good for payment'. But this does not absolve the Bank or its official who had signed/guaranteed the cheques to stop the payment. A cheque marked as 'good for payment' acquires, ineffect, a status as good as if it were issued by the drawee banker himself. The credit of the banker is added to that of customer which gives the cheque additional currency showing that it would be encashed without fail. The Bank Manager is guilty of maladministration. The cheque in question were marked by the manager as 'good for payment'. Moreover, the manager had also confirmed in writing that these cheques in question would be certainly encashed on dates mentioned therein. I, therefore, recommend that the Bank should make the payment of the cheques so guaranteed by its official.
17. The Bank is free to recover this amount either from the official responsible for issuing undertaking for encashment of the cheques in question or the party which issued these cheques."
18. ' In the said circumstances, the bank stood answerable, liable and responsible to make payment to the affected persons and thereby loss would be caused to the bank in case payment is to be made as per directions of the Wafaqi Mohtasib, therefore, the award of the fine by the Trial Court cannot be said to be unjustifiable and illegal. Besides above it would be seen even if the appeal filed by the bank against the said decision of Ombudsman before the President of Pakistan is allowed then also in equity there being a collusion of the bank employee who having affixed the seal of the bank induced the affected persons, hence, they would be entitled in law to sue the bank for the recovery of the amount which they paid to the appellant on the undertaking of the co-accused Syed Zargham Haider Jaffri (since deceased). The Trial Court has also in the impugned judgment of conviction has ordered that in case the fine is recovered same shall be paid to the bank in case appeal filed by the bank against the order of Wafaqi Mohatisib is dismissed by the President of Pakistan and in case the appeal is allowed, payment shall be made to the affected persons to the extent of loss sustained by them. This order is quite reasonable and equitable which in our view cannot be disturbed on the technical grounds which has also no foundation considering that the bank would sustain loss in case appeal pending before the President of Pakistan is allowed or disallowed.
19. ' However, from the prosecution evidence it would appear that charge was framed under section 420/406, P.P.C., against the appellant/accused in respect of offences committed upon Mst.
20. Manzoor Fatima, (ii) Ahsan Aijaz, (iii) S.M. Kazmi, (iv) M.M. Khan, (v) Shaikh Abdul Aziz and (vi)
21. Qurban Rabbani, while the Trial Court has held that the prosecution has proved the charge against the appellant in respect of offence of cheating so far affected persons namely Muhammad Murtaza, (ii) Shaikh Abdul Aziz, (iii) Abdul Aziz Ansari (though not named in the charge), (iv) Qurban Rabbani and (v) Mst. Zarina, whereas no offence has been held to have been proved in respect of Mst. Mansoor Fatima and her two sons Ehsan Aijaz Kazmi and Hassan Eijaz Kazmi, consequently, appellant was held to be guilty of cheating Muhammad Murtaza and Shaikh Abdul Aziz and Abdul Aziz Ansari (but not mentioned in charge) only. The evidence would show that M.M. Khan was deprived of Rs,6,00,000 + Rs,4,45,000 + Rs,1,49,000 total Rs,11,94,000 so far Shaikh Abdul Aziz he was deprived of Rs,1,66,000 + Rs,4,20,000 + Rs,3,60,000 total Rs,9,46,000 grand total of both affected persons would come to Rs,21,40,000. Subsection (3) of section 6 of Banks (Special Courts)
22. Ordinance provides that, the sentence of fine shall not be less than twice the amount of loss thereby Trial Court could impose fine of Rs,21,40,000 x 2 = Rs,42,80,000 whereas in the instant case Trial Court has imposed fine of Rs,60,00,000 which accordingly is reduced and modified to Rs,42,80,000 maintaining the period of imprisonment in case of default awarded by the Trial Court.
23. ' The third contention of learned counsel for the appellant is that the dishonoured cheques were not put to the appellant is that the dishonoured cheques were not put to the appellant in his statement under section 342, Cr.P.C., therefore, the proceedings have vitiated. We do not find substance in the said contention. Perusal of questions Nos.1 and 2 under section 342, Cr.P.C., would show that the appellant was put questions with regard to issuance of post-dated cheques, though the numbers of cheques and dates of cheques were not mentioned in the questions but non- mentioning of numbers and dates of cheques have not caused any prejudice to the appellant/accused, considering that all post-dated cheques which were used as evidence were produced by the prosecution in presence of appellant and his counsel, considering that the appellant/accused was given sufficient opportunity to give his explanation with regard to the evidence so produced and each circumstance having incriminatory effect against him. The learned counsel for the appellant has not shown us as to how the appellant/accused could be said to have been prejudiced by not stating the specific numbers and dates of post-dated cheques in the statement under section 342, Cr.P.C., though it mentioned that "he issued post-dated cheques which were endorsed as good for payment". It would not be out of place to state here that the appellant has not denied the issuance of post-dated cheques in favour of affected persons so also has not denied that the same was not endorsement as "good for payment" by co-accused Syed Zargham Haider Jaffri. In the circumstances the contention of learned counsel for the appellant that trial has vitiated for not putting the numbers and dates of dishonoured cheques to the appellant in his statement under section 342, Cr.P.C., has no substance and merit.
24. ' So far the next contention of learned counsel for the appellant that the charge framed was defective and was violative of sections t 32, 233 and 234 of Cr.P.C., sections 232, 233 and 234 of Cr.P.C., read as under:- "232. Effect of material error.--- (1) If any Appellate Court, or the High Court or the Court of Session in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid charge could not preferred against the accused in respect of the facts proved, it shall quash the conviction.
25. 233 Separate charges for distinct offences.--- For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235 and 239.
234. Three offences of same kind within a year may be charged together.--- (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
(2) Offences are of the same kind when they arc punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law.
26. ' Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Pakistan Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
27. ' On going through the charge framed against the appellant/accused and evidence led, it would appear that he has not been misled in his defence by not mentioning the numbers and dates of the cheques and further the evidence produced by the prosecution would show that the charge framed against the accused stood proved only in respect of offence under section 420, P.P.C., beyond any reasonable doubt. The appellant/accused was charged for offences under section 406/420, P.P.C., but the charge having not been proved for an offence under section 406, P.P.C., the appellant was convicted for an offence under section 420, P.P.C. Section 233, Cr.P.C., would not apply in the instant case. Section 234, Cr.P.C., permits three offences of same kind within a year could be charged together. In the instant case, the appellant has issued number of post-dated cheques to a number of persons mentioning different dates over the cheques but the appellant under the law could be convicted under one charge for three offences of same kind within a year and conviction based on such charge cannot be said to be illegal and the appellant could be convicted of three offence of cheating committed within a year. But, in fact, the appellant has been convicted in the instant case on one count only of cheating. P.W.5 Muhammad Murtaza in his evidence has deposed that the appellant gave him three post-dated cheques (Exhs.19/A, 19/B and 19/C) to be payable to him on 1-6-1990, 1-7-1990 and 1-8-1990 in respect of the total amount of Rs,11,94,000 and on the reverse of the cheques co-accused Syed Zargham Haider Jaffri has made endorsement as "good for payment" and affixed the seal of the bank and put his signature thereon and assured him that the cheques would be honoured. This would show that on the same date all the three post-dated cheques were issued and it was one transaction made on same day in respect of one amount paid by the witness to the appellant/accused. This has also been clarified in the cross- examination by the witness wherein he has stated that amount of cheques was also paid on the same date in presence of Manager Syed Zargham Haider Jaffri. Even if three cheques are treated to be three independent/separate transactions then also the said oftences being of the same kind within a year, the conviction based cannot be said to be illegal and would not be vitiated on account of such charge. But in case, three post-dated cheques viz Exhs.19/A, 19/B and 19/C issued to M.M. Khan by the appellant on the same date though mentioned three different dates, viz 1-6-1990, 1-7-1990 and 1-8-1990 for presentment and making the payment constituted one transaction then two post-dated cheques of P.W. Shaikh Abdul Aziz out of three cheques Exhs.21/A, 21/B and 21/C could be put together to include three offences of the same kind within the space of twelve months from the first to last of such offences would make the charge within the provisions of law and the conviction based for such offences would not vitiate the trial and judgment considering also the fact that the appellant is convicted for offence of cheating on one count only and the sentence passed cannot be said to be illegal on the said account.
28. ' Perusal of the charge and oral as well as documentary evidence produced would show that the appellant Was given full opportunity who cross-examined all P.Ws. At length through his counsel, consequently, the charge so framed under all circumstances cannot be said to have caused failure of justice or has prejudiced the appellant. Even if we take three postdated cheques which were issued by the appellant in favour of Mr. M.M. Khan and endorsed by the co-accused Syed Zargham Haider Jaffri are taken into consideration then also evidence so adduced and brought on record proved the charge beyond reasonable doubt against the appellant. It be observed also that the appellant at no stage before the Trial Court raised such objection about the charge. Besides, section 535, Cr.P.C., deals with the effect of omission to frame a charge and the said provisions of law provide that no finding or sentence pronounced or passed shall be deemed to be invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision, failure of justice has. In fact, been occasioned thereby. In the instant case charge was framed and fair trial was given to the appellant who was assisted by his counsel as well, and on the proper appreciation .Of evidence adduced, the appellant is convicted and sentenced as said above. Mere fact that there have been more offences than three of same kind in respect of cheating in the charge against the appellant, would by itself not be sufficient to hold that there has been failure of justice or that appellant was prejudiced consequently on the said account, the conviction and sentence cannot be said to have been illegal or invalid so as to set aside the same; considering also that appellant was convicted for cheating on one count only. In addition to above, section 537, Cr,P.C., also provides that no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the mode of trial inclUding any misjoinder of charge unless any error, omission or irregularity has, in fact, occasioned a failure of justice. It be said that error or omissions are not to be treated and regarded as material at any stage of proceedings unless the accused has been misled thereby or there has been failure of justice. Nothing has been pointed out as to how the appellant could be said to have been prejudiced or there has been failure of justice. We have already held in view of facts, circumstances and evidence of case that neither the appellant was misled nor any prejudice has been caused to him, consequently, conviction and sentence passed cannot be set aside on that score except as to reduction in the amount of fine as observed by us above.
29. ' In view of aforesaid reasonings, we do not find any substance in the contention of learned counsel for the appellant that charge having not been framed in accordance with law, the conviction and sentence were liable to be set aside.
30. ' So far the contention that F.I.R. Was belated being in violation of section 173 of Cr.P.C., therefore, the conviction and sentence passed are liable to be set aside. We do not find any substance in the contention of learned counsel for the appellant. The Trial Court has observed in the judgment as under:-- "..,. His next contention was that F,I.R., was lodged on 29-2-1992 while interim challan was submitted on 8-12-1992 and final challan on 11-1-1993 and there has been long and unexplained delay on the part of the prosecution in submitting the challan, He has relied upon section 173, Cr.P.C and certain authorities. But it may he pointed out that amendment in section 173, Cr.P.C., has been made in December, 1992, which requires the police officer to submit interim challan within a period of 14 days from the date of recording of F A.R. The rulings cited by the accused on this point are all given after the amendment. The law previous to the amendment was that the challan was to be submitted as soon as the investigation was completed and no time limit was fixed under section 173, Cr.P.C. The filing of interim challan within 14 days was regulated by section 167, Cr.P.C., where an accused person was arrested and was required to be kept in custody."
31. ' Besides as said above, the Trial would not stand vitiated for non- H compliance of submission of challan within prescribed time, at-The most, the concerned police officer could be proceeded with for disciplinary action under the law for not making compliance. Reference may be made to (i)
32. Mahanth Dukhan Das and others v. Emperor AIR (31) 1944 Pat. 211 and (ii) Taj Din and 2 others v.
33. Sardar Vakil Khan and 2 others 1973 PCr.LJ 629.
34. ' The last contention of learned counsel for the appellant is that mere execution of post-dated cheque would not constitute a criminal offence. From the evidence adduced by prosecution it would appear that the appellant had issued post-dated cheques knowing that-he had no balance in his account which representation was a false and was made in order to cheat the persons from whom the amount was taken. From the evidence which has been brought on record it would appear that the appellant knew at the time of issuing the cheques that the said cheques would not be encashed in the normal course which proved the intention of the appellant to cheat. Reference may be made to (i) Abdul Karim Butt v. Abdul Qayoom and another 1972 PCr.LJ 1182 and (ii) Nisar Ali v. Munshi Mehar Khan PLD 1981 SC 607 wherein their lordships held that "law cannot be laid down so broadly as to hold that in every case of post-dated cheque, no offence of cheating would arise and it would remain a civil transaction considering that intention of drawer of cheque and his knowledge to be ascertained from evidence led at trial and not merely from complaint or recitals therein and also manner in which and to which extent, recipient of cheque induced or defrauded."
35. In the cited case, the Honourable Supreme Court has upheld the decision of High Court refusing quashment of the proceedings in respect of case under section 420, P.P.C., on the ground that every case of post-dated cheque would not amount to a civil transaction by dismissing the appeal.
36. ' In view of aforesaid reasonings, discussion and case-law, we do not find substance and merit in the contentions of learned counsel for the appellant, consequently, this appeal is hereby dismissed. However, amount of fine so imposed by the Trial Court is reduced and modified to Rs,42,80,000 in view of the reasons given above.