SHAFAQAT HUSSAIN HASHMI Versus State

SALMAN HAMID, J. ---The applicant, via this application under section 561-A, Criminal Procedure Code has questioned order dated 24-7-2010, passed by the IXth Judicial Magistrate, Karachi East (JM), dismissing application moved by the applicant under section 249A, Cr.P.C. for acquittal from the charges raised against him in F.I.R. No.238 of 2009 of Police Station Shah Faisal Colony, Karachi.

2. Encapsulating, facts deducible from the F.I.R. seems to be that one Faiz Muhammad Memon was issued a Cheque No.7481638 dated 28th August, 2008 by the applicant at his residence (Flat No.18 Block A, Falaknaz Center Sharah-e-Faisal, Karachi), for an amount of Rs.300,000. This cheque was presented by the complainant for its encashment in an account at Soneri Bank, Clifton Karachi, which was dishonoured. Present F.I.R. cropped up thereafter.

3. The main thrust of argument of the learned counsel for the applicant was that since the cheque that was drawn in favour of the complainant was of a UBL branch at Airport and that admittedly it was presented for encashment at Soneri Bank, Clifton Branch and that F.I.R. was lodged at Police Station Shah Faisal Colony, Judicial Magistrate had no jurisdiction to try the case.

4. The State Counsel opposed the application by asserting that the F.I.R. did not only include section 489-F but also contained sections 420 and 506, P.P.C. and from the F.I.R. it is clear that the cheque was dishonestly issued by the applicant at the residence of complainant at Police Station Shah Faisal and also that the intention of cheating was patent at the time of issuance of the cheque and that criminal intimidation in terms of section 506, P.P.C. was alive and therefore the JM had the jurisdiction. Even otherwise to attract the provisions of section 249-A, Cr.P.C., it was argued by the learned State Counsel, that it was incumbent upon the applicant to have shown that there was no charge against him and/or the charge in F.I.R. was groundless.

5. I have heard arguments of the learned counsel and the A.P.-G.; gone through the record and the order dated 24-7-2010. It seems that the learned JM totally missed out on the point that cheque that was presented for encashment was a stale cheque inasmuch as it was admittedly issued on 28-8-2008 and from the narration of F.I.R. dated 4-7-2009 it (cheque) was presented around July, 2009 i.e. beyond period of six months from the date of its issue. The cheque having been presented beyond six month's time was bound to be dishonoured and bounced. Section 489-F of Cr.P.C. reads as under:--

"489-F. Fraudulently Issuing a cheque:-- whoever dishonestly issued a cheque towards repayment of a loan or fulfilment 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 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."

6. The language of above reproduced section is clear in its intent that an offence under this section would come to fore only upon the cheque being issued, dishonestly and upon its presentation it is dishonoured thereby confirming the intention of issue of cheque dishonestly by the issuer. Gauging the case in-hand on the touchstone of the language of the above reproduced section 489-F, Cr.P.C. and is being put in juxtaposition to the narration of F.I.R., it would become abundantly clear that dishonest intention of the applicant is nowhere patent and/or deducible if the cheque was issued with dishonest intention and upon its presentation was bound to be dishonoured. On the contrary it is clear from the narration of the F.I.R. that there were some dealings between the applicant and complainant and that the complainant and applicant at the relevant time were on friendly terms and were neighbours and for purchase of a vehicle an amount of Rs.300,000 had been obtained and that upon insistence of the complainant as the amount lent was not forthcoming, cheque under point was issued as far back as on 28-8-2008 which upon presentation beyond six months period of time stood discharged.

7. It is well settled that the High Court in appropriate cases may exercise jurisdiction under section 561-A, Cr.P.C. without waiting for the trial court to pass order under section 249-A or 265-K, Cr.P.C. if the facts of a given case so warrant inasmuch as main consideration which needs to be kept in mind is that whether the continuance of the proceedings before trial court would be an exercise in futility and wastage of time and abuse of the process of court or not? If the High Court comes to the conclusion on the basis of the facts on record that no offence can be made out and it would amount to abuse of process of law and allowing the prosecution to continue with the trial would be a waste of time and aggravation to the miseries of the accused then High Court in appropriate cases quash the proceedings.

8. It is abundantly clear from the above discussion that a stale cheque was presented for payment beyond the period of six moths and it was bound to dishonour and it seems that the complainant knowing well that the cheque would not be encashed, still presented it for payment, merely to bring a case against the applicant under section 489-F, Cr.P.C. This aspect of the matter having been settled and put at rest, the point of jurisdiction as raised by the learned counsel may be decided by merely observing that admittedly, as per contents of the F.I.R. the cheque was issued at the residence of the complainant within the jurisdiction of Police Station Shah Faisal Colony by the applicant who was neighbour of the complainant and in this view of the matter, Police Station Shah Faisal Colony also had jurisdiction.

9. However for what has been observed above regarding presentation of a stale cheque, the charges brought against the applicant are found groundless. Therefore it would be appropriate and in the interest of justice that the proceedings be nibbed in the bud and the process of law is prevented from being abused. This being the position, proceedings in Criminal case No.26 of 2010 arising from F.I.R. 238 of 2009 under sections 420, 489-F and 506, P.P.C. of Police Station Shah Faisal Colony pending before the JM are hereby quashed. Application disposed of accordingly.

MWA/S-18/K Proceedings quashed.