| Citation(s) |
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| 2021 SLG 333 2021 SLD 333 2021 YLR 114 |
Sindh High Court
Crimnal Revision Application No. S-49 of 2016, decided on6-11-2019, Date of hearing: 19th September, 2019.
MUHAMMAD SALEEM, JESSAR, JUSTICE
Abdul Haleem Siddiqui for Appellant.Maqbool Ahmed for
Respondent No.2.Ms. Amna Ansari, Additional Prosecutor General, Sindh for the State.
Crimnal Revision Application No. S-49 of 2016, decided on6-11-2019, Date of hearing: 19th September, 2019.
MUHAMMAD SALEEM, JESSAR, JUSTICE
Abdul Haleem Siddiqui for Appellant.Maqbool Ahmed for
Respondent No.2.Ms. Amna Ansari, Additional Prosecutor General, Sindh for the State.
KIM SEON BAEVSTHE STATE AND 2 OTHERS
Law: Penal Code (XLV of 1860)
Section: 489-F
Law: Criminal Procedure Code (V of 1898)
Section: 417
(a) Penal Code (XLV of 1860)---
----S. 489-F---Criminal Procedure Code (V of 1898), S. 417---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused/respondent had given a cheque amounting to 50,000 US Dollars equivalent to Pak Rs. 45,00,000/-, which on presentation at the concerned Bank was dishonoured due to insufficient funds---Admittedly, the cheque was issued by the accused/respondent and same was dishonoured on presentation---Accused contended that cheque was given to complainant for security purpose in the year 2006, whereas complainant alleged that accused purchased road reflector CATS EYES from him, amount of which was not paid and cheque was given to him in the year 2012 towards the dues outstanding against the accused---Statement made in his evidence by the complainant/appellant appeared to be vague and sketchy---Neither complainant had given any specific date when the alleged transaction of EYE CATS took place between him and the accused, nor had he given the details of the such business transaction or produced any document in respect of such transaction---Evidence of complainant showed that he sent the container of CATS EYES in the year 2007, thus, it appeared that the said transaction took place in the year 2007---Stand taken by the accused that he had issued the said cheque as security in the year 2006 was strengthened, because normally in case any huge business transaction took place, certain security was deposited by the party who had taken the goods---Although the complainant/appellant in his deposition had stated that he came to Pakistan 27/28 times and in the year 2012 he visited Pakistan seven times, for the purpose of receiving payment from the accused but not a single document had been produced by him to establish such fact---Bare words not supported by any documentary/tangible evidence could not be accepted---Complainant alleged that the accused issued cheque in question on 15-03-2012 which was presented by him on the same date, which fact was also confirmed by Bank Manager/witness in his evidence---Said fact also negated the plea taken by the complainant that the accused issued the cheque in question with dishonest intention, because if the accused had any dishonest intention, then as to why he continued to make payment through other Banks, particularly even after lodging of the FIR on 14-10-2012 for an amount of US DOLLARS 5000, as admitted by the complainant himself---Appeal against acquittal was dismissed, in circumstances.
1991 MLD 1; 1991 SCMR 2300; 2001 MLD 1277; PLD 199 SC 45; 2001 MLD 1169; 2004 YLR 2748; 2013 YLR 1798; 2019 PCr.LJ 295, PLD 2011 Lah. 52; 2001 SCMR 90; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.
(b) Penal Code (XLV of 1860)---
----S. 489-F---Criminal Procedure Code (V of 1898), S. 342---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Defence plea of issuing the disputed cheque as security---Scope---Plea of the accused that he had issued the cheque in question in the year 2006 for security purpose and not in the year 2012 also got support from the fact that the said cheque was of Union Bank---Bank Manager, in his cross-examination, clearly admitted that the Union Bank was acquired by the Standard Chartered Bank in the year 2006---Not understandable as to why, after acquiring of ˜The Union Bank by ˜Standard Chartered Bank in the year 2006, the accused would keep the cheque book of Union Bank with him for such a long period---However, if the plea of the accused that he had issued the said cheque in the year 2006 for security purpose was accepted, then it would cope with the subsequent events, as the accused had issued an undated cheque for security purpose only, which was kept by the complainant and then used in the year 2012 which was got dishonoured by presenting the same after about six years---Circumstances established that the cheque in question was issued by the accused, not with any dishonest intention, in the year 2006 for purpose of security only and not to repay a loan or to fulfil an obligation---Appeal against acquittal was dismissed, in circumstances.
Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607 and Raza Khan v. M. Abid Khan 2014 YLR 90 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Presumption--- Double presumption of innocence of the accused was attached to the order of acquittal---Court act slowly in interfering with an order of acquittal, unless grounds for acquittal were perverse, wholly illogical or unreasonable.
Muhammad Asghar and another v. The State PLD 1994 SC 301; Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305; Yar Mohammad and 3 others v. The State 1992 SCMR 96 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.
----S. 489-F---Criminal Procedure Code (V of 1898), S. 417---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused/respondent had given a cheque amounting to 50,000 US Dollars equivalent to Pak Rs. 45,00,000/-, which on presentation at the concerned Bank was dishonoured due to insufficient funds---Admittedly, the cheque was issued by the accused/respondent and same was dishonoured on presentation---Accused contended that cheque was given to complainant for security purpose in the year 2006, whereas complainant alleged that accused purchased road reflector CATS EYES from him, amount of which was not paid and cheque was given to him in the year 2012 towards the dues outstanding against the accused---Statement made in his evidence by the complainant/appellant appeared to be vague and sketchy---Neither complainant had given any specific date when the alleged transaction of EYE CATS took place between him and the accused, nor had he given the details of the such business transaction or produced any document in respect of such transaction---Evidence of complainant showed that he sent the container of CATS EYES in the year 2007, thus, it appeared that the said transaction took place in the year 2007---Stand taken by the accused that he had issued the said cheque as security in the year 2006 was strengthened, because normally in case any huge business transaction took place, certain security was deposited by the party who had taken the goods---Although the complainant/appellant in his deposition had stated that he came to Pakistan 27/28 times and in the year 2012 he visited Pakistan seven times, for the purpose of receiving payment from the accused but not a single document had been produced by him to establish such fact---Bare words not supported by any documentary/tangible evidence could not be accepted---Complainant alleged that the accused issued cheque in question on 15-03-2012 which was presented by him on the same date, which fact was also confirmed by Bank Manager/witness in his evidence---Said fact also negated the plea taken by the complainant that the accused issued the cheque in question with dishonest intention, because if the accused had any dishonest intention, then as to why he continued to make payment through other Banks, particularly even after lodging of the FIR on 14-10-2012 for an amount of US DOLLARS 5000, as admitted by the complainant himself---Appeal against acquittal was dismissed, in circumstances.
1991 MLD 1; 1991 SCMR 2300; 2001 MLD 1277; PLD 199 SC 45; 2001 MLD 1169; 2004 YLR 2748; 2013 YLR 1798; 2019 PCr.LJ 295, PLD 2011 Lah. 52; 2001 SCMR 90; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.
(b) Penal Code (XLV of 1860)---
----S. 489-F---Criminal Procedure Code (V of 1898), S. 342---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Defence plea of issuing the disputed cheque as security---Scope---Plea of the accused that he had issued the cheque in question in the year 2006 for security purpose and not in the year 2012 also got support from the fact that the said cheque was of Union Bank---Bank Manager, in his cross-examination, clearly admitted that the Union Bank was acquired by the Standard Chartered Bank in the year 2006---Not understandable as to why, after acquiring of ˜The Union Bank by ˜Standard Chartered Bank in the year 2006, the accused would keep the cheque book of Union Bank with him for such a long period---However, if the plea of the accused that he had issued the said cheque in the year 2006 for security purpose was accepted, then it would cope with the subsequent events, as the accused had issued an undated cheque for security purpose only, which was kept by the complainant and then used in the year 2012 which was got dishonoured by presenting the same after about six years---Circumstances established that the cheque in question was issued by the accused, not with any dishonest intention, in the year 2006 for purpose of security only and not to repay a loan or to fulfil an obligation---Appeal against acquittal was dismissed, in circumstances.
Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607 and Raza Khan v. M. Abid Khan 2014 YLR 90 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Presumption--- Double presumption of innocence of the accused was attached to the order of acquittal---Court act slowly in interfering with an order of acquittal, unless grounds for acquittal were perverse, wholly illogical or unreasonable.
Muhammad Asghar and another v. The State PLD 1994 SC 301; Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305; Yar Mohammad and 3 others v. The State 1992 SCMR 96 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.
JUDGMENT
MUHAMMAD SALEEM JESSAR, JUSTICE:---.---
By means of instant Criminal Acquittal Appeal, the appellant has assailed Judgment dated 01.09.2013 passed by learned IInd Additional Sessions Judge, Karachi South, whereby he allowed Criminal Appeal 24 of 2013 and set aside the Judgment of conviction dated 22.08.2013 passed by learned Vth Judicial Magistrate, Karachi South in Cr. Case No.2345/2012 (re: State v. Kim Chong Bae) arising out of FIR No.233/2012 registered at Police Station Boat Basin ACLC, Karachi under section 489-F, P.P.C., and acquitted respondent No.2, Kim Chong Bae.
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