SECTION 489-F, PPC: OBJECT, SCOPE &TRIAL

Sana Abbas Dashti (Civil Judge & Judicial Magistrate- Karachi East)

                

 For every business or trade to flourish there is need of paramount security from state to remedy unilaterally breach of contract or for expiation of damage if caused by any and sustained by other person through fraud, cheating, breach of trust or by breaching the terms and condition of contract or by committing any criminal act.  This security is provided by the state by establishing a proper Judicial System. The effectiveness of any Judicial System is dependent upon quick, certain and inexpensive justice delivery. The framers of the Constitution of Pakistan also contemplated this need and made this demand part of constitution contained in clause (d) of Article 37 of Constitution of Pakistan, 1973.

          The first part which defines the offence has a few ingredients which must be shown to constitute an offence under the provision. Those are dishonestly issuance of cheque, Issuance of cheque towards re-payment of a loan or fulfillment of an obligation and that cheque was dishonored on presentation before bank.[1] There is no denial from the fact that cheques may be issued for the purposes beyond the one which constitute an offence under the provision. One of the purpose for which a cheque may be issued is for security. The cheques given for security has remained long in debate, if the same is bounced would it constitute an offence within meaning of provision or not. Recently the Lahore High court took up this issue and held that even dishonor of security cheque may constitute an offence under the provision if on the date of presentation right for recovery of amount has accrued and further held that the proposition that all security cheques are beyond the scope of section 489-F, P.P.C. is too broad to be accepted. Every transaction must be minutely examined in the light of the jurisprudence discussed above to determine whether section 489-F, P.P.C. is attracted.[2]

        The other notable challenge which stake holders of criminal justice system faced in application of provision was whether offence could only be limited to natural person or it could be extended to juristic person. Section 11 of the Pakistan Penal Code is relevant to this proposition, which states that person includes any company or association or body of persons, whether incorporated or not. A corporate body is juristic person.  Though, a corporate body cannot be indicted for offences like treason, murder, bigamy, perjury, rape etc, which can only be committed by Human individuals. However, a corporate body ought to be indictable for criminal acts and omissions of its directors, authorized agents or servants irrespective involvement of Mens Rea.[3]

      Another issue which came into consideration in cases falls within provision was about “self cheque”. The Lahore High Court recently took this proposition and held that when the question pertains to issuance of a “self-cheque”, whereby the drawer is himself the payee, the offence created by Section 489-F is not attracted.[4]

      The superior courts have further emphasized that this provision must not used as a tool to recover amount which otherwise is civil remedy. It has repeatedly been held by the Superior courts that Section 489-F PPC is relevant and attracted only to cases where the dishonoured cheque has been issued for repayment of a loan or towards discharge of an obligation. It has been clarified by the Supreme Court of Pakistan that the obligation to be discharged had to be an existing obligation and not a futuristic obligation arising out of a possible default in future. Therefore any cheque issued as surety or guarantee or to cater for a possible default in future cannot be accepted as a cheque issued towards discharge of an obligation. The Supreme Court maintained that obligation in the context of Section 489-F PPC has to be existed at the time of issuance of the cheque and not a futuristic obligation. Any provision constituting a criminal offence and entailing punitive consequences has to be strictly and narrowly construed.[5]

           Bare perusal of provision shows that nature of offence is different from ordinary offences in Pakistan Penal Code. Primarily, it is in nature of civil transaction. The instrument (cheque) involved is one of negotiable instrument. There is separate law governing the negotiable instruments in our country i.e. Negotiable instrument Act, 1881. No separate definitions are provided in provision or anywhere else in criminal law, which means whenever situation demands to understand nature of instrument or dilate upon any person’s right and obligation in respect of cheque,  one has look up the relevant law, the Negotiable instrument Act. These things require that investigation officer for the offence envisaged by the provision must be skillful, with adequate knowledge and approach towards relevant law. 

     After submission of charge sheet the procedure for trial of offence is same which is provided for ordinary magisterial trial cases. The burden remain on prosecution to prove all the ingredients of offence to bring the charge against accused at home, unless the accused takes plea of statutory defense, which if proved charge would be groundless[6].

      The trial of offense ensued from the provision and availing of civil remedy together or consecutively does not amount to double jeopardy. The purpose of criminal charges is to punish the delinquent for offense committed by him, while purpose of civil remedy is to recovery the amount due from the accused. Both have distinct features and nature. However, the courts have discouraged from lodging of multiple FIRs for each different cheque arising out of same transaction and it has been held that in case more than one FIR is lodged even for a separate cheque arising out of same transaction same would not be admissible and accused would be entitle to either acquittal or case could be cancelled in “C” class prior cognizance, by referring the cheques if any from same transaction to first FIR.[7] 

                Like any other law, the jurisprudence revolving around the provision is also developing and progressing. In current situation plea of security cheque does not completely white-wash the offence; self cheque if bounced would not amount to an offence and multiple FIRs even on basis of different cheques but forming same transaction and cause of action has been discouraged.  

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 [1] “Mian Allah Ditta v. The State and others” (2013 SCMR 51)

[2] Muzzafar Ahmed Vs the State (2021 PCRLJ 1393)

[3] Mirza Ishtiaq Hussain Vs. Abdul Qadeer (1982 PCRLJ  463)

                [4] Naveed Ishaq Vs Ex.officio Justice of Peace (W.P No.4190 of 2021)

[5] Mian Muhammad Akram v. The State (2014 SCMR  1369) & Mian Allah Ditta v. The State (2013 SCMR 51).

[6] Muhammad Sultan V/s. State of Pakistan (2010 SCMR 806)

[7] Sheikh Rehan Ahmed V/s. Judicial Magistrate Karachi (2019 MLD 636)  & Hamid Khan vs. The State  (2022 M L D 31)