LAHORE: The Lahore High Court on Wednesday has ruled that a criminal case under section 489-F (dishonour of a cheque) Pakistan penal code could not be registered against an account holder for issuance of a “self cheque”.
In its 14 page order, Justice Shan Gul declared that “a “self” dishonoured cheque (even if the reference on the cheque to a bearer is not crossed) does not entitle a bearer to request for registration of a criminal case unless and until there is a positive endorsement in favour of the bearer either on the back of the cheque or by means of a separate document which would make the bearer a “holder in due course‟.
A plaintiff, Naveed Iqbal, approached the Lahore High Court against the order of ex-officio justice of peace (sessions judge) wherein police was directed to lodge an FIR against him under section 489-f PPC for purportedly issuing a “self” cheque which was dishonored on presentation in the bank.
The petitioner pleaded that he never issued a cheque to anyone or in anyone’s name. He said he handed over the cheque to his employer as security and he gave it to the complainant without his consent.
The court observed that if the payee is “self” it can be reasonably and correctly presumed that the money for which the cheque was issued was to be paid to the drawer himself. Moreover, it is also reasonable to presume that a person would not dishonestly issue a cheque to pay money to himself and that the cheque was not issued towards the repayment of a loan or towards the fulfillment of some legal obligation one has towards oneself, the judgment read.
“However since an offence under Section 489-F requires the cheque to have been issued with dishonest intention as well as for the purpose of payment against a loan or liability, being a mere „payee‟ or a „bearer‟ would arguably not fulfill the requirements of Section 489-F for which the complainant must show (i) a clear intention of the drawer allowing the complainant to present and encash the cheque (through a specific endorsement) and also (ii) a liability owed by the drawer of the cheque towards the complainant. Otherwise, it will simply be a bearer cheque open for encashment by anyone to whom the drawer does not owe or might not intend to pay anything, the judgment explained.
The court observed that how could a cheque issued by an account holder to ‘himself’ (payee) ever result in attracting criminal liability of three years of hard treatment in jail in addition to stigmatization and moral blameworthiness, contained in Section 489-F PPC?
How could a person dupe himself, or lend money to himself and assume an obligation to repay himself? and how could he defraud himself?, the judge questioned.
The judge wrote that “Section 489-F of the Pakistan Penal Code of 1860 criminalizes and resultantly penalizes the act of dishonestly issuing a cheque towards repayment of a loan or fulfillment of an obligation, which is dishonoured on presentation by punishment with imprisonment which may extend to three years or with fine, or with both.
The court further ruled that “the problem arises when a Cheque is issued to “Self” but the same also allows the (unidentified) bearer to collect the proceeds and is presented by some person (since any bearer can present and get the cheque encashed) and upon its dishonour such person approaches the police for registration of FIR under Section 489-F. In the instant case the bearer of the Cheque is the complainant and asserts the commission of offence without there being anything on record to show that he himself is the creditor of the drawer of the cheque. “Therefore, it cannot be ascertained without more that the drawer of the cheque intended that the complainant could present the cheque and hence there is nothing to indicate that the drawer had any intention to issue the cheque to the complainant let alone a dishonest intention and no evidence suggests that the complainant is creditor of the drawer either, the court ruled.
Hence, the offence created by Section 489-F is not attracted where whereby the drawer of a “self-cheque” is himself the payee, the judge concluded.
Justice Shan Gul set aside the order of the ex-officio justice of peace regarding registration of FIR against Naveed Iqbal on the basis of a dishonoured ”self” cheque.
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