ISLAMABAD: The Islamabad High Court (IHC) on Thursday declared that an “insufficient balance” in a person’s bank account was not a sole ground to convict him in a cheque dishonour case.
Justice Tariq Mehmood Jahangiri gave the ruling while setting aside the conviction of Mazhar Iqbal by an additional district and sessions judge on May 28, 2021.
A complainant moved an application in the sessions court for registration of an FIR under section 489-F against Mr Iqbal, stating that his brother had sold his joint property and invested Rs1.6 million with him.
On their demand for the return of money, Mr Iqbal paid Rs200,000 in cash and issued cheques for the remaining amount. One cheque for Rs500,000 was issued in the name of the complainant’s brother whereas a cheque for Rs900,000 was issued in his name.
When the second cheque was presented before the bank it was dishonored due to an insufficient balance.
The trial court convicted and sentenced the petitioner to three years’ imprisonment. The petitioner’s counsel contended that the prosecution’s story was highly doubtful and the trial court had misread the evidence.
State’s counsel opposed the acceptance of the petition on the ground that sufficient evidence had been produced, impugned judgments were well reasoned and in accordance with the law.
But the court noted that section 489-F is about “dishonestly issuing a cheque and the convict shall be punished with imprisonment which may extend to three years or with fine, or with both.”
The court stated: “To constitute an offence, dishonesty on the part of the person issuing the cheque is a precondition.”
The word ‘whoever dishonestly issued cheques’ used in the section clearly indicates to constitute an offence. It must be proved that the cheques had been issued dishonestly.
Dishonesty means a fraudulent act or intent to defraud others, it is also a precondition that the cheque should be dishonoured on “presentation”, the court order said, adding “every transaction where a cheque is dishonoured may not constitute an offence.”
Justice Jahangiri noted that the offence occurred on June 16, 2006, whereas the date of registration of the FIR is May 11, 2009.
There is no plausible explanation for reporting the matter to the police after an inordinate delay of about three years.
The FIR stated that a brother of the complainant sold his land and invested Rs1.6 million, however, no evidence of selling the joint property of the complainant and his brother was produced before the trial court.
Justice Jahangiri held that “in this case the prosecution has failed to prove its case against the petitioner beyond a reasonable doubt.
There are so many defects and contradictions in the prosecution case/evidence; thus, the prosecution case appears to be doubtful and the benefit of the same should be extended in favour of the petitioner.”
Published in Dawn, September 17th, 2021