MUHAMMAD SULTAN vs STATE
This criminal appeal arises from concurrent findings of lower courts convicting the appellant under Section 489-F of the Pakistan Penal Code 1860 for issuing a dishonoured cheque towards the fulfillment of a business obligation. The core legal question before the Supreme Court was whether the ingredients of Section 489-F, PPC were satisfied and if the appellant's defence regarding a stolen cheque and stopped payment was sustainable. The Supreme Court dismissed the appeal, holding that the issuance of the cheque and the appellant's signature were undisputed, the defence plea of a stolen cheque was inconsistent with his statement under Section 342 of the Code of Criminal Procedure 1898 and his prior bank application, and the meager bank balance at the relevant time negated his purported arrangement for payment. The key principle laid down is that to attract penal liability under Section 489-F, PPC, the prosecution must prove the issuance of a cheque with dishonest intention to repay a loan or fulfill an obligation which was subsequently dishonoured, placing the burden strictly on the accused to establish a valid statutory defence through tangible evidence.
- What are the essential ingredients required to prove an offence under Section 489-F of the Pakistan Penal Code 1860?
- Does the burden of proof shift to the accused under Section 489-F, PPC to establish that he made arrangements with his bank to honour the cheque?
- Can concurrent findings of lower courts regarding the conviction for issuing a dishonoured cheque be interfered with when the accused admits his signature on the cheque?
- Whether a defence plea regarding a stolen cheque is tenable when inconsistent with the statement of the accused under Section 342 of the Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
Rahmat Hussain Jafferi, J.--On 21.3.2005 at 8.50 a.m the complainant Noor Muhammad lodged the FIR at Police Station Kotwali, Faisalabad alleging therein that there was a business dealing between him and the appellant for supply of kitchen towel cloths. In pursuance of the said dealing an amount of Rs,3372038/- was outstanding against the appellant. In order to satisfy the claim the appellant issued a cheque of Rs,2500000/-dated 26.2.2005 which, was presented before the bank but it was dishonoured on 28.2.2005. After investigation the police challaned the appellant in the Court where he was tried and convicted for offence punishable under Section 489-F, PPC and sentenced to three years RI and fine of Rs, 15000/- or in default thereof to suffer imprisonment for one month with benefit of Section 382-B, Cr.P.C, vide judgment dated 15.7.2008 of Judicial Magistrate (Section 30, Cr.P.C.), Faisalabad. The appellant preferred an appeal and criminal revision before the Sessions Court and High Court, respectively but the same were dismissed.
Therefore, the appellant filed the petition for grant of leave to appeal. The leave was granted on 29.6.2009, hence the present appeal.
2. Section 489-F, PPC reads as under:-- "Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or 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."
A perusal of Section 489-F, PPC reveals that the provision will be attracted if the following conditions are fulfilled and proved by the prosecution-- (i)issuance of cheque; (ii)such issuance was with dishonest intention; (iii)the purpose of issuance of cheque should be; (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.
However, a valid defence can be taken by the accused, if he proves that: (i)he had made arrangements with his bank to ensure that the cheque would be honoured; and (ii)that the bank was at fault in dishonoring the cheque.
If the accused establishes the above two facts through tangible evidence and that too after the prosecution proves the ingredients of the offence then he would be absolved from the punishment.
3. The learned counsel for the appellant has argued that the appellant's cheque book was stolen, therefore, the complainant himself filled in the cheque of Rs,2500000/- but on 26.1.2005 one month before its presentation the appellant moved an application before the bank for stopping the said cheque. He has further stated that the stand of the appellant has been supported by the employee of the bank, who was examined as DW-1.
4.Conversely, the learned counsel for the complainant has stated that the appellant had issued the cheque with his signature; that the appellant has not denied the signature on the cheque; that a contrary stand has been taken by the appellant in his statement recorded under Section 342, Cr.PC than the above stand; that the case has been fully proved against the appellant, therefore, the concurrent findings of Courts below do not require any interference by this Court. The learned DPG has supported the arguments of learned counsel for the complainant.
5 Having heard the learned counsel and perusing the record of the case, we find that there was business transaction between the complainant and appellant. Prosecution alleged that in order to satisfy the claim of the complainant the appellant issued the cheque. Such fact has been proved from the evidence of PWs. Without touching the factual aspect of the case, the learned counsel for the appellant has simply argued that the appellant's cheque book was stolen and the complainant filled the cheque. Such plea has not been supported by his own. statement under Section 342, Cr.
PC. In response to a query, the learned counsel for the appellant has stated that the appellant kept the signed cheque which was stolen and used by the complainant. Thus the appellant has not disputed the signature on the cheque in question. It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. Furthermore, DW-1 has stated that on 26.1.2005 an application was filed by the appellant for stopping the payment of the cheque and that at that time the balance in the account of the appellant was Rs,300/- only. We have perused the said application from winch we find that the appellant did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing. It appears that balance in the account of the appellant was Rs, 300/- only at the time when the application was moved as such it does not appeal the common sense that the appellant would request the bank to stop the transaction when there was meager amount tying in the account.
6. After considering the material available on record, we are of the considered view that the concurrent findings of the Courts below do not call for interference. The appeal has no merits, therefore, the same is dismissed.