2016 P Cr.

L J 1640
 
[Peshawar]
 
Before Assadullah Khan Chamkani, J
 
HIMAYATULLAH---Appellant
 
Versus
 
MUHAMMAD IQBAL and another---Respondents
 
Criminal Appeal No. 339-P of 2009, decided on 15th January, 2016.
(a) Penal Code (XLV of 1860)---
 
----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a
cheque---Appeal against acquittal---Appreciation of evidence---Criminal and civil proceedings---
Maintainability---Maxim that 'a man should not be vexed twice'---Applicability---Trial court
acquitted the accused on the ground that criminal proceedings were not maintainable as civil suit
regarding the disputed amount of cheque had already been decreed in favour of the
complainant---Findings of the Trial Court regarding non-maintainability of the criminal
proceedings in presence of civil proceedings about the same transaction were against the law,
because civil and criminal proceedings were two different remedies provided by law having
different consequence; therefore, both remedies, being not overlapping, could be simultaneously
availed by the complainant having a right under the law---In case different rights to commence
proceedings of civil and criminal nature had sprung up with different results, those (remedies)
could be availed differently, and the maxim that 'a man should not be vexed twice' would not be
applicable---Decree passed in the civil suit filed by the complainant was shown to have been set
aside by the appellate court---Bank account in question was in the name of the Company, and the
Partnership Deed provided that the Account would be operated with joint signatures of two
partners, including the accused; whereas, the dishonoured cheque handed over by the accused to
the complainant did not bear the signatures of both partners, and nothing was available on record
that the Company had authorized the accused to issue the cheque in his personal capacity---
Controversy as to payment of loan (on account of which the cheque had been issued) was
allegedly between the complainant and the accused and not between the Company and the
complainant---Grievance of the complainant was, therefore, against the accused and not against
the Company---Memorandum governing the right of the Company, although, provided that any
cheque issued by the accused/Director would be acceptable by the Company, but neither said
document had been exhibited during the trial, nor had the same been put to the accused in his
statement under S. 342, Cr.P.C; said document, therefore, the same had no evidentiary value---
Complainant had failed to prove the Account, in respect of which the cheque had been issued, to
be the personal Account of the accused---None of the two partners of the Company had been
examined--- Appeal against acquittal was dismissed accordingly.
 
(b) Criminal Procedure Code (V of 1898)---
 
----S. 342---Power to examine accused---Principle---Any piece of evidence on which the
prosecution relies, if not put to an accused in his statement under S. 342, Cr.P.C. would be of no
help for the prosecution, as the same has no evidentiary value.
 
Mohib Jan Salarza for Appellant.
 
Mian Arshad Jan, A.A.-G. for the State.
 
Mehboob Shah for Respondent.
 
Date of hearing: 30th November, 2015.
 
JUDGMENT
 
ASSADULLAH KHAN CHAMKANI, J.---This appeal is directed against the judgment
dated 23.06.2009, rendered by learned Senior Civil Judge/Judicial Magistrate Charsadda
whereby respondent-accused Muhammad Iqbal, has been acquitted in case FIR No.563 dated
12.04.2004, registered under section 489-F, P.P.C., in Police Station Charsadda.
 
2. Allegation against the respondent-accused are that he handed over a cheque amounting to
Rs.2,50,000/- pertaining to Account No.8821871 of National Bank Charsadda, to complainant
Himayat Ullah in respect of adjustment of some loan, but the same was dishonoured from the
concerned bank on its presentation by complainant due to insufficient amount in the account of
the accused.
 
3. After completion of investigation challan was submitted against the accused before the
learned Trial Court, where he was tried and ultimately acquitted vide impugned judgment, hence,
this appeal.
 
4. Learned counsel for the appellant argued that appellant has proved the guilt of the
accused/respondent through cogent and confidence inspiring evidence but by overlooking the
same, the learned Trial Court reached to erroneous conclusion by acquitting the respondent
accused; that about the disputed amount the appellant has also filed a civil suit against the
respondent-accused which has been decreed in his favour; that the findings of the learned Trial
Court qua non-maintainability of criminal and civil proceedings concurrently about the same
transaction, are against the law as there is no legal bar to the maintainability of both such
proceedings simultaneously because criminal offence is altogether a different matter from the
civil liability. He sought reversal of the impugned judgment.
 
5. Learned AAG supported the arguments of learned counsel for the appellant to the extent
of criminal and civil proceedings concurrently about the same transaction, he, however, fairly
and frankly conceded that the material evidence to prove that the accused/respondent was legally
authorized to issue the cheque on behalf SHAMAL CONSTECH in his personal affairs has not
been put to the accused in his statement under section 342, Cr.P.C., benefit of which would
definitely goes in favour of the accused-respondent.
 
5(sic.) Learned counsel for the accused/respondent contended that prosecution has miserably
failed to prove the account in respect of which the alleged cheque had been issued to be the
account of the accused; the decree passed against the respondent by the learned Civil Court in
respect of the disputed amount has been set aside by the learned Appeal Court/District Judge-I
Charsadda vide judgment dated 07.04.2010. He produced attested copy of the judgment of the
appeal Court. He while supporting the impugned judgment sought dismissal of the appeal.
 
6. Arguments heard and record perused.
 
7. It appears from the record that accused/respondent was the director of a company known
as SHAMAL CONSTECH. As per partnership deed, the said company was being run in the
partnership of two partners, namely, Mr. Iqbal Khan and Mr. Imtiaz Ahmad. Account
No.8821871 was opened in the name of aforesaid company in National Bank of Pakistan
Charsadda. According to the partnership deed, the Bank account of the company will be operated
with joint signatures of the two partners, named above. The cheque in question has been
allegedly handed over to the appellant by respondent which pertains to account of the aforesaid
Company, but it does not bear the signatures of the two partners. Nothing is on the record to
prove that SHAMAL CONSTECH had authorized the accused/respondent to issue a cheque in
his personal capacity. The controversy about the loan of Rs.304000/- was allegedly between the
accused and the appellant and not between the appellant and the Company. Though the
memorandum governing the rights of SHAMAL CONSTECH was produced during the course of
arguments, according to which any cheque issued by the accused/ Director would be acceptable
to the Company, but neither the said document has been exhibited during trial nor has the same
been put to the accused in his statement under section 342, Cr.P.C. It is settled law that any piece
of evidence on which the prosecution relies, if not put to an accused in his statement under
section 342, Cr.P.C., would be of no help for the prosecution. Besides, the said document having
been not exhibited would have no evidentiary value. The grievance of the petitioner is not
against SHAMAL CONSTECH, but against an individual/accused, but he failed to prove the
account in respect of which the cheque in question has been issued to be the personal account of
the accused. Rather sufficient material is available on record which prove the account in question
to be that of SHAMAL CONSTECH Company. Apart from above, according to the condition
No.4 of the partnership deed, the Bank account of the company will be operated with joint
signatures of the two partners, but the cheque in question does not bear any signature of the two
partners named above. None of these two partners has been examined to support the version of
the appellant or to justify the fact that accused respondent was legally authorized to issue a
cheque from the account of the company in respect of his personal affairs.
 
8. In view of the above discussed facts and circumstances of the case in light of the
available evidence, prosecution has miserably failed to prove the guilt of the accused/respondent.
As regard civil suit filed by the appellant against the respondent in respect of the same
transaction i.e. recovery of the disputed loan, no doubt, the same had been decreed in his favour
by the learned Trial Court, but during the course of arguments, learned counsel for the accused-
respondent produced attested copy of judgment of the learned Appellate Court/ Additional
District Judge-I, Charsadda, in C.A. No.62/13 decided on 07.04.2010, wherein the impugned
judgment and decree of the learned Trial Court/Civil Court has been set aside.
 
9. The findings of the learned Trial Court qua not maintainability of the criminal
proceedings in presence of civil proceedings about the same transaction, are against the law
because civil and criminal proceedings are two different remedies provided by law having
different consequences therefore, both the remedies being not overlapping can be simultaneously
availed by a person having right under the law. If different rights to commence proceedings of
civil or criminal nature has sprung up with different results, those can be availed of, differently,
and maxim that "a man should not be vexed twice", would not be applicable in such a situation.
 
10. In view of the above, the findings of the learned Trial Court that "a man should not be
vexed twice", being not applicable to the facts and circumstances of the instant case are hereby
set aside, while rest of the findings qua acquittal of the accused/respondent are hereby
maintained. Resultantly, this appeal being without any substance stands dismissed.
 
SL/189/P Appeal dismissed.