Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No,231 of 1998 registered on 17-6-1998 under sections 420, 468 and 471, P.P.C. At Police Station Gulberg, Lahore.
2. The brief facts narrated in the F.I.R. Are that the complainant is Electrical Engineer and joined Epsilon Engineering International (Pvt.) Limited on 21-1-1995 and served there till 23rd of July, 1995.
The complainant claims that when he resigned from company an amount of Rs,87,181 was due from the account of company. On 4th July, 1996 the petitioner issued a Cheque No,05071422 amounting to Rs,10,000 to be got encashed from Habib Bank Limited Super Market, Liberty Market, Lahore which was deposited but it was dishonoured due to non-availability of amount in the said account. It is alleged that an amount of Rs,87,181 is not being paid to the complainant by the petitioner.
3. Learned counsel for the petitioner contends that bare perusal of F.I.R. Shows that no cognizable offence is made out and it has become crystal clear that civil liability has been converted into criminal offence by registering the FIR/ Learned counsel for the petitioner further contends that the mala fides of the complainant by lodging the F.I.R. Are crystal clear and primarily the criminal law is being diverted for the recovery of civil liability. It is also contended that it is a fit case in which the High Court has jurisdiction and can interfere under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by quashing the F.I.R. He relies upon (PLD 1963 (W.P.) Lahore 481) titled as Mahmood-ul-Hassan v. Imtiaz Khan and another. It is further contended that the intention of the complainant shows that he wants settlement of the civil dispute with the petitioner by pressurising him under the garb of commission of criminal offence. However, though the cheque was issued yet there was no intention for deceiving the complainant and the petitioner is not involved in fraudulent transactions merely on the ground that the funds were not sufficient to make payment to the complainant. Reliance is placed on (PLD 1963 (W.P.)
Karachi 54) titled as Saeeduddin Qureshi v. The State and (PLD 1987 Quetta 230) titled as Anand Ram v. Moti Ram and 3 others. It has also been contended that non-fulfilment of promise is not the crime and if cheque was dishonoured it is the civil liability and no criminal offence has been committed. Learned counsel for the petitioner further contends that liability already existed when- the cheque was issued and petitioner has not obtained anything in lieu thereof, hence, offence does not fall within the purview of section 415, P.P.C. He relies on (PLD 1987 Quetta 230) titled as Anand Ram v. Moti Ram and 3 others, and it has been held therein that if the liability already existed before the issuance of cheque and in order to discharge that liability if the cheque has been issued which was dishonoured is not an offence unless this was done on dishonest representation or fraudulent inducement. Learned counsel for the petitioner also relied upon the judgment reported in (PLD 057 (W.P.) Lahore 420) titled as National Bank of India Ltd., Lahore v. Dost Muhammad & Brothers, The Mall, Lahore, the relevant portion for ready reference is reproduced as under:-- "When a customer draws a cheque for a larger amount.Than what he has to his credit in the Bank, he obviously makes a request to the bank to pay the amount in spite of insufficiency of funds. It is presumably a request for a loan and if the Bank honestly believing that it is a request for an overdraft pays the amount. I see no reason as to how the customer can escape the liability by saying that as he had no funds, he knows that the cheque would be dishonoured and will not be paid. If after issuing such a cheque, he keeps quiet and takes no steps to inform the Bank in time, that the cheque should not be honoured, he is surely liable to the Bank if payment is made by the Bank in due course. Section 10 of the Negotiable Instruments Act says that 'payment in due course' means, payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned." It is further contended that the law is if the cheque is dishonoured by the Bank and the Bank will compensate the holder or endorser who is compelled to pay it, according to section 30(1)(a) and
(b) of The Negotiable Instruments Act, 1881. It is also contended that the case has been lodged with the delay of more than 2 years with mala fide intention. It is also contended that no notice was issued to the petitioner hence, civil liability does not arise. It is further contended that sections mentioned in the F.I.R. Are not applicable the facts and circumstances of this case, hence, writ can be issued in such circumstances. He relied upon the following authorities: "(AIR (32) 1945 Privy Council 18) titled as Emperor v. Khawaja Nasir Ahmad, (PLD 1989 Peshawar 144) titled as Feroze Khan and 5 others v. Miskin and (1971 PCr.LJ 266) titled as Yaqoob Khan and another v. The State and 3 others. It is also contended that this case is beyond the jurisdiction of the police as the civil liability arises against the 'petitioner and no offence is disclosed. It is also contended that post-dated cheque is merely promise of making payment of future date and broken promise is not the criminal offence, it may be discredible behaviour but not the criminal offence. He also relied upon (PLD 1191 Peshawar 121) Javaid Hamid v. Hassan Jan and 2 others, which shows that non-fulfilment of the obligations to pay, or non-fulfilment of the contract will amount to perpetuating the illegality. He also relied on (1996 MLD 1362) Mian Tariq Azmat Sheikh v. S.H.O., Police Station F.I.A. (Banking Circle), Ahmed Park, Khanewal Road, Multan and 2 others. It is further contended by the learned counsel for the petitioner that dishonour of a cheque has not been defined as offence in any law. He refers section 4 of Cr.P.C. Sub-clause (o) wherein the offence has been defined that an offence means any act or omission made punishable by any law for the time being in force, and as no law provides punishment in case a cheque is dishonoured hence, no offence has been committed by the petitioner. It is further contended that when the petitioner has not committed any offence and has not been charged with any offence, the F.I.R. Is liable to be quashed. He relies upon (PLD 1967 Supreme Court 317) Ghulam Muhammad v. Muzammal Khan and 4 others, and contends that if the allegation does not disclose any offence, the F.I.R. Is liable to be quashed. It is also contended that the F.I.R. Due to the abovesaid contentions is liable to be declared as illegal, unlawful and is liable to be quashed.
4. On the other hand, learned Additional Advocate-General argues that persons who have deceiptfully issued the cheques are not to be protected by the law and the persons who are cheater or deceiving the innocent persons are not entitled to any relief as prayed for in this petition.
It is also contended that to prove the mens rea some evidence is required even at the stage of investigation and if the investigation is not allowed to proceed then the very dispute cannot be resolved. It is further contended that the facts are distinguishable from the case referred to by the learned counsel for the petitioner reported in (PLD 1963 Karachi 54). In this case the challan was submitted and as many as 8 witnesses were recorded and then the matter came before Karachi High Court and the F.I.R. Was quashed. It is further contended that in the case reported in (PLD 1987 Quetta 230) titled as Anand Ram v. Moti Ram and 3 others, the facts are also distinguishable from the facts of this case. In that case the proceedings were quashed and the opportunity to collect the evidence was afforded to the prosecution to prove the case against the accused persons. It is also contended that the distinction in criminal case civil liability can only be drawn after affording opportunity to the prosecution to collect evidence and only after collection of total evidence the Court can decide whether the case is, liable to be quashed or not while exercising the powers conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
5. I have heard the learned counsel for the parties and also perused the documents attached with this petition. The only question involved in this case is whether issuance of cheque by the petitioner which has been subsequently dishonoured can be termed as a criminal offence or not and whether by the registration of the case the complainant has not diverted the civil liability into a criminal offence. It is admitted fact in the F.I.R. That the complainant worked in the firm of the petitioner and according to the complainant an amount of Rs,87,181 was due from him when he resigned from the job. The amount so payable was not being paid and subsequently a cheque amounting to Rs,10,000 was issued by the petitioner which has been dishonoured. It is crystal clear that civil liability existed before issuance of cheque and complainant was making efforts for the recovery of the said amount and due to the result of these efforts a cheque was issued by the petitioner which has been dishonoured. It is not a case in which a cheque has been issued and something has been received in lieu of that amount from the complainant. Hence, distinction has to be drawn before registration of case due to the reasons that cheque has been dishonoured. The cases can be divided into two categories. The first category is when the civil liability already exists and subsequently some cheque is issued which is dishonoured and second category is when something is received by the persons who issued a cheque and then the cheque is dishonoured. In the first category the dishonour of a cheque will not amount to a criminal offence and registration of the case in such circumstances will amount to enforce civil liability by diverting the same into criminal offence for pressurizing the person who has issued a cheque for the payment of the amount to the complainant. It will amount diversion from the normal process for the recovery of civil liability which cannot be allowed to be continued because it will be an abuse of process of law and it will amount to giving a discriminatory treatment to the persons who have to pay some money or has some dispute for the payment of some money. The continuation of the same will amount to abuse of process of law and can be interfered by this Court even in writ jurisdiction. The bare perusal of F.I.R. In the case in hand shows that the civil liability existed before issuance of a cheque, hence, the complainant was at liberty to adopt lawful means for the recovery of the amount from the petitioner or his firm by filing a civil suit. The issuance of a cheque by the petitioner in such circumstances does not amount to commission of criminal offence as section 420, P.P.C. Is not attracted in the facts and circumstances of this case. The ingredients and requirements of an offence of cheater are not made out from the facts and circumstances of this case. I am fortified by the view taken in Mahmood-ul-Hassan v. Imtiaz Khan and another's case reported in (PLD 1963 (W.P.) Lahore 481) wherein it has been held that it is well-settled that an attempt to enforce civil liability through the machinery of the Criminal Courts constitutes an abuse of the process of the Court and that when a High Court has reason to believe that such a procedure has been adopted, the proceedings should be quashed. Relying upon (S.C. Mitra v. Raja Kali Charan AIR 1928 Oudh 104), the High Court came to the conclusion and it was observed that criminal proceedings in a subordinate Court constitute process of the Court and that if the High Court comes to the conclusion that the process is being abused, it will indicate that there is a patent case of injustice and the High Court will undoubtedly interfere at any stage which the case in question has reached. In Saeeduddin Qureshi v. The State reported in (PLD 1963 (W.P.) Karachi 54) the High Court has held that bouncing of a cheque is not sufficient for the purpose of establishing a charge of cheating. In this regard the relevant portion is reproduced as under:- "But quite apart from this ruling it is a well-established principle of the Criminal Law that the mere fact that a cheque bounces is not sufficient for the purpose of establishing h charge of cheating. It must further be shown that the drawer of thht cheque knew at the time that he drew it that there would be insufficient money to his credit in his Bank account on the day of encashment." I am also impressed by the case of Anand Ram v. Moti Ram and 3 others reported in (PLD 1987 Quetta 230) where it has been held that accused allegedly cheated complainant by issuing a cheque (to satisfy his liability due to respondents) which was dishonoured with remarks 'not arranged for'. It has also been held that mere issuing of cheque could not by itself constitute a criminal act. It was only when it was done on dishonest representation or fraudulent inducement that cause for criminal action was made out. Initiation of proceedings against accused on criminal side was, therefore, clearly abuse of process of Court.
6. From bare perusal of abovesaid cases it is settled that High Court can interfere if criminal procedure is being adopted instead of adopting procedure for the recovery of money and the machinery of the Criminal Courts is being used it will be an abuse of the process of the Court, hence, in the case in hand the civil liability already existed before the issuance of cheque, thus, even due to the dishonour of cheque situation has not been cheque and the petitioner has not received anything in lieu of issuance of C. Changed and the circumstances continued to exist as for the payment of money to complainant is concerned, therefore, the diversion of civil liability in criminal offence seems to be with mala fide intention and for ulterior motives and ingredients of cheating are not made out and the pendency of the criminal case on the same subject is abuse of process of law and is hereby quashed by accepting this petition.
7. However, before parting from this judgment, the cases faith within the second category which is already mentioned in the earlier paragraphs will fall within mischief of cheating and case can be registered and can be investigated by the Police in case of dishonouring a cheque when some benefit in lieu by issuance of some cheque is taken by the issuer of a cheque.