ABDUL AZIZ Versus State
ORDER
FAHIM AHMED SIDDIQUI, J.--- Through, the instant criminal revision application, the applicants have questioned the legality and propriety of the impugned judgment dated 29.02.2020 pronounced by the Appellate Court (MCTC-1 i.e. the Court of Additional Sessions Judge-1, Karachi Central) as well as the judgment of Trial Court (Judicial Magistrate-VII, Karachi Central) pronounced on 20.01.2020.
2. The prosecution case is based on FIR No. 01/2019 lodged at Police Station North Nazimabad, according to which, the applicants have issued cheques of different amounts to be drawn from two different banks. The total amount of those cheques was Rs. 45,00,000/ -which was payable to the complainant under some settlement regarding undelivered apartment booked by the complainant in some project purported to be built by the applicants. The cheques were deposited in the bank account of the complainant but the same were bounced.
3. Mr. Rashid Mehmood Siddiqui opens his arguments on behalf of the applicants by submitting that the very basis of the criminal case i.e. FIR is not proper, as the complainant has already lodged another FIR based on the same facts. He submits that the earlier FIR i.e. 526/2018 under sections 420, 468, 471, 504 and 34, P.P.C. was lodged at the same police station having a similar story. He submits that since at the time of lodgment of earlier FIR, the cheques in question were already bounced, as such, the complainant was required to mention the same in the said FIR and section 489-F P.P.C. ought to be incorporated in the same. He submits that since the complainant himself has abandoned the insertion of section 489-F, P.P.C. in the earlier FIR; therefore, he cannot lodge another FIR on the same ground. He contends that in the existing scenario the charge becomes baseless and the complainant has used this proceeding as a tool for recovery, which is not permissible. According to him, the learned Appellate Court did not bother to go through the deposition, and without taking the pen to analyze the evidence, the appeal was dismissed in a slipshod manner, which is not proper. He further submits that the complainant advisedly concealed certain documents, which were brought on record by the applicants through Statement under section 342, Cr.P.C. but the same were not discussed by the learned Appellate Court while deciding the appeal. He submits that it amounts to the miscarriage of justice and in such a situation this Court is fully competent to intervene while deciding this revision. He tries to fortify his plea of misreading and non-reading of evidence by referring to different portions of depositions. After going through the deposition, he emphasizes that the dishonesty and obligation are essential to attract the provision of 489-F, P.P.C. but these points could not be established by the prosecution. He fortifies the points raised by him by placing his reliance on the following case laws. i) Sheikh Rehan Ahmed v. Judicial Magistrate-II, South, Karachi and 2 others 2019 MLD 636. ii) Mir Nazeer Ahmed v. The State (2017 PCr.LJ Note 105) iii) Mian Allah Ditta v. The State and others (2013 SCMR 51) iv) Adamji v. Muhammad Farooq and another (2016 PCr.LJ 1846) v) Muhammad Juman v. The State (2005 YLR 1785) vi) Sardar Muhammad Aslam v. S.H.O./Incharge, PS Mirpur Avvittavad (2013 YLR 108) vii) Abdul Rahim alias Walhari v. The State (2016 YLR 2147)
4. Mr. Zahoor Shah, learned DPG submits that it has come on the record that the applicants have taken amount on the pretext of some project in which the flat was promised to provide. He further submits that in this way they collected money and usurped the same. Regarding the merits of the case, he contends that there is no flaw in the trial and appeal was rightly dismissed. The learned DPG also contends that on the facts, the Appellate Court is the final authority while the provision of criminal revision is ousted in the present case. He contends that the applicants have sold out the same property to several persons including the complainant and have taken a huge amount from them and on their agitation, they have issued cheques, which were bounced due to insufficient funds, as such, obligation and dishonesty both are established.
5. Mr. Shaikh Muhammad Mushtaq, learned counsel for the complainant submits that the present revision application is not maintainable. According to him, the criminal revision is only maintainable on some legal points and it may not be used as a substitute for the second appeal. He submits that for the factual analysis, the lower appellate forum is the final authority and now factual aspects could not be looked into in the instant revision application. He admits the lodgment of another earlier FIR against the applicants at the same police station for fraud and cheating. Regarding non-insertion of section 489-F, P.P.C. in the previous FIR, he contends that due to jurisdiction, the present FIR is lodged separately as the bank of the complainant lies in a different jurisdiction. He submits that the accused persons have issued cheques of two different banks, as such, it was advisable to lodge present FIR within the jurisdiction of police station wherein the cheques were dishonoured. He contends that the complainant is not using the criminal proceeding as a tool of recovery and for that purpose, he has already invoked the summary jurisdiction of District Court. He strongly supports the judgments of two fora below by submitting that there is neither any misreading or non-reading of evidence/ material by trial Court nor any illegality and irregularity by the Appellate Court. He submits that the applicants/convicts have defrauded a good number of people with the same tactics. According to him, several criminal cases of like nature have been lodged against the applicants/ convicts. In support of his contentions, he relies upon Mst. Mussarrat v. The State (1993 PCr.LJ 678).
6. I have given anxious consideration to the submissions made by either side and also perused the relevant record and cited case laws.
7. The foremost question pertains to the maintainability of the instant criminal revision. It is forcefully argued by the learned prosecutor duly supported by the counsel for the complainant that the criminal revision is not maintainable in this case. It is the contention of the applicants that the charge was groundless, as the present case could not be initiated due to lodgment of earlier FIR under sections 420, 468, 471, 504, 34, P.P.C. He tries to make it a great point that by lodgment of the present FIR, the complainant intends to use it as a tool of recovery, which is not permissible under the law.
8. It is worth noting that if the applicants consider that they have been involved in a groundless charge sheet, they could have filed a motion for their discharge at the earlier stage of proceeding or opt for pre-trial or during trial acquittal. Nevertheless, they did not adopt that course. The learned counsel for the applicant has relied on the case of Shaikh Rehan Ahmed (supra) which was penned down by me. The factual narration of Sheikh Rehan Ahmed's case is vastly distinguishing to the present case. In the said case law, it is held that at the time of lodgment of earlier FIR, the complainant has to mention all those cheques which were dishonoured at that time. In the said case, the tendency of using several dishonoured cheques for initiating series of criminal cases under section 489-F, P.P.C. one after another was discouraged. Nevertheless, in the present case, the situation is different. The earlier FIR was lodged regarding cheating and fraud committed by the complainant within the jurisdiction of Police Station Aziz Bhatti. The present FIR is lodged at Police Station North Nazimabad, as the bank of the complainant is situated within the jurisdiction of the said police station. So far as the contention of the learned counsel for the applicants regarding multiple jurisdictions is concerned, the same does not bear weight. It may be that the applicants' banks fall within the jurisdiction of Police Station Aziz Bhatti but in the case of multiple jurisdictions, it is the sweet-will of the complainant to choose the jurisdiction for putting the law in motion.
9. While exercising the revisional jurisdiction under section 435 read with section 439 of the Code of Criminal Procedure, this Court should not, normally, reappreciate the evidence. The reason is obvious, the two Courts below have already appreciated the shreds of evidence on record, and based on the record, they have given concurrent Judgments. No doubt, the power of this Court to reappraise the evidence is always available but for the same exceptional circumstances have to be pointed out, warranting such exercise. It is true that amongst the impugned cheques, two were returned on the ground, namely, 'insufficient funds' while the third cheque was returned on the ground namely 'stop payment'. The banker has categorically mentioned these facts on the memo issued by the drawer banks. The appellants have taken a plea that the cheques were issued as guarantee or security. Hence, the issuance of cheques is not denied while the same facts are established during the trial. The prosecution has brought sufficient material on the record to establish the issuance of cheques by the applicants/convicts. However, it would be appropriate to address the plea of applicants/convicts regarding the issuance of cheques as security. It is a fact that there was no regular or sequential business deal between the parties. It is a solitary deal regarding the booking of a residential unit. However, if it is considered that the cheques were issued by the applicants/convicts as security then the question arises what ensuing reason for this security. It is evident from the agreement annexed by the applicants/ convicts with their statements under section 342, Cr.P.C. that the cheques were issued as security for providing a housing unit in which the applicants/ convicts failed. Even the applicants/ convicts did not describe or show the physical existence of unit promised to handover to the complainant. Meaning that the cheques were actually issued dishonestly while the obligation of the applicants/convicts is also established.
10. So far as the case of Mian Allah Ditta (supra) is concerned, the said case pertains to a bail application in which the applicant was a contractor and being service provider business relationship is established. In the said case, the cheques were issued in consequence of an arbitration proceeding as security rather than obligation. The terms of arbitration accord were there and the same must require reciprocal duties, which aspect is missing in the present case as there is neither an arbitration accord nor a reciprocal duty of the complainant. The simple matter is that the applicants/ convicts have issued cheques instead of delivering the residential unit, as such, the same is not a security but an obligation i.e. refund of payment already received by the applicants/convicts on the pretext of providing a flat to the complainant.
11. So far as the contentions of the learned counsel regarding not appraising the evidence by the learned Appellate Court is concerned, the same is also contrary to the facts. The Appellate Court has gone through the entire evidence and in the impugned judgment all the exhibits have been mentioned in chronological order. Both the courts below have appraised the evidence and such discussion is available on the record. As explained earlier, the issuance of cheques is not denied, and dishonoring the same is also established. In such a situation, an in-depth discussion is hardly necessary by the learned Appellate Court. Similarly, discussion to the extent of documents presented by the applicants with the statement under section 342, Cr.P.C. is concerned, it will not improve the case of the prosecution. The said document is an agreement, which was denied by the complainant. For argument's sake, if the said agreement is treated with Evangel sanctity, it will not improve the defence version anymore.
12. The conduct of the applicants/ convicts in giving the cheques by affixing their signatures is an undeniable fact. The presumption under section 118 of the Negotiable Instruments Act, 1881 comes into force when the cheques have been issued by the applicants/convicts and the same were dishonored. Of course, such presumption is a rebuttable presumption, and the same can be dislodged by the applicants/convicts even by the preponderance of probabilities and not by proof beyond a reasonable doubt during trial. From the record, it is established that the applicants/ convicts could not rebut such presumption through the preponderance of probabilities rather there is admission as well as proof of 'insufficient funds' and 'stopped payment'. On the other hand, the prosecution has established its case beyond a reasonable doubt.
13. Before parting, I would like to add that in the instant case three bank managers have been cited by the prosecution as witnesses. They just appeared and verified the memos, dishonoured negotiable instruments and statement of accounts etc. According to the provision of Section 4 of the Bankers' Books Evidence Act, 1891, (hereinafter referred to as 'the Act') these documents can be proved simply by certified copies as well as a separate certificate to verify the facts of maintenance of account by an individual, if necessary. For the sake of convenience, section 4 of the Act is reproduced as under:-
"4. Mode of proof of entries in Banker's Books.---Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima-facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recording every case where, and to the same extent of the original entry itself is now by law admissible, but not further or otherwise."
The Banks are providing essential services to society and they are playing an important role in financial activities. They act as the custodian of deposit holders' money and also provide liquid capital to the commercial and industrial activities, as such, their existence is like life-blood for the modern economy. It was the reason that the legislature, under Section 5 of the Act, has given protection to the bankers for appearance in courts unless a specific direction issued by the Court. For the sake of clarity, Section 5 of the Act is reproduced as under:--
"5. Case in which officer of bank not compellable to produce books.---No officer of a bank shall in any legal proceeding to which the bank is not a party be compellable to produce any banker's book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the Court or a Judge made for special cause."
In view of the above referred statutory provisions, it is hereby directed that in the future in case of prosecution under section 489-F, P.P.C., the police should not cite the Bank Managers or other officers of the Banks under the calendar of witnesses, and the production of certified copies will be sufficient. Nevertheless, in case of denial or due to any other exigency, the trial Court is competent to call any officer of a bank to depose as a court witness. The office is directed to send a copy of this order to the Inspector General of Police, Sindh for information and compliance. The office shall also send a copy to the MIT of this Court for circulating the same amongst all Judicial Magistrates under the administrative control of this Court.
14. Because of the above discussion, I am confident to hold that there are no infirmities in the concurrent findings of the Courts below warranting interference under criminal revision. Resultantly, the instant criminal revision application is devoid of merits, as such, the same is dismissed.
JK/A-127/Sindh Revision dismissed.