Bail Grant in 489 F PPC

2013 S C M R 51

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

Mian ALLAH DITTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.707-L of 2012, decided on 31st October, 2012.

            (Against  the  order  of  the  Lahore  High  Court Lahore dated 19-9-2012 passed in Criminal Miscellaneous No.12966-B of 2012).

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Cheque issued as security and not towards repayment of outstanding loan or fulfilment of an obligation---Effect---Complainant alleged that accused owed him a sum of money and paid the cheque in question, which was dishonoured on presentation---Accused contended that cheque in question had only been issued as security when both parties agreed to settle their dispute through arbitration---Validity---Issuance of cheque in question appeared to be connected with the arbitration accord---Investigation officer stated that cheque was issued by way of security rather than for discharge of liability---Prima facie circumstances indicated that cheque in question was not issued towards repayment of some outstanding loan or fulfilment of an existing obligation instead it had been issued to meet a possible future obligation, therefore, foundational elements of S.489-F, P.P.C. were prima facie missing---Pre-arrest bail of accused was confirmed in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 489-F--- Dishonestly issuing a cheque--- Ingredients---Foundational  elements  to  constitute  an  offence  under S.489-F, P.P.C.  were  that  cheque  should  be  issued  with  dishonest  intent; that cheque should be issued towards repayment of a loan or fulfilment of an obligation, and that cheque in question should be dishonoured

Sikandar  Zulqarnain,  Advocate  Supreme  Court  and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

            Malik Mushtaq Ahmed, Advocate Supreme Court along with the Complainant for Respondent No.2.

            Mazhar Sher Awan, Additional P.-G. Punjab and Muhammad Khan, SI/IO Police Station Kotwali, District Sialkot for the State.

            Date of hearing: 31st October, 2012.

JUDGMENT

            TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks bail in the case registered vide F.I.R. No.261 of 2012 dated 7-8-2012 under section 489-F, P.P.C. at Police Station Kotwali District Sialkot on the statement of Mian Muhammad Shoban with the allegation that he had some business transactions with the petitioner; that in that regard the petitioner owned him a sum of Rs.2500,000 for which he issued cheque bearing No.41741493 amounting to Rs.2500,000 which was dishonored when presented before the Askari Bank.

2.         Learned counsel for the petitioner seeks bail on the ground that the case is false; that the petitioner and complainant entered into an agreement for construction of complainant's house; that a dispute arose with regard to the rendition of amounts for which one Arshad Mehmood Bagoo Advocate was appointed as Arbitrator and it was agreed that whatever the said Arbitrator decided, both sides would abide by and comply with the said decision. The cheque in question, he further contended,  was issued as security and this was not the amount which was to be paid to the complainant nor he was ever held entitled to receive the said amount by the Arbitrator (vide the Arbitration Award dated 24-11-2011).

3.         Learned counsel for the complainant, on the other hand, opposes the petition and submits on instructions that the cheque in question was issued on account of an agreement dated 17-8-2011 and that the arbitration award to which reference has been made by petitioner's learned counsel is not relevant; that petitioner owes the cheque amount mentioned in the cheque and that is why he issued the cheque which has been dishonored and he is not entitled for the grant of bail.

4.         The investigating officer present in Court, on Court's query, submits that during investigation, it has come to light that Mr. Arshad Mehmood Bagoo was appointed as Arbitrator and in terms of his award, petitioner owed the complainant Rs. 650,000 and the cheque issued by the petitioner was by way of security when parties had decided to have the matter settled through arbitration and it was not the actual amount which petitioner was liable to pay to the complainant.

5.         Learned  Additional  Prosecutor-General  opposes  the  petition by  submitting  that  the  very  fact  that  petitioner  issued a  cheque which  was  dishonored  makes  him  criminally  liable  and  he  is  not entitled  to  pre-arrest  bail  as  there  are  no  mala  fides  apparent  on record.

6.         Having heard learned counsel for the parties and learned Law Officer at some length and having gone through the record, we find that the agreement dated 17-8-2011 to which reference has been made by complainant's learned counsel is of a prior date which was overtaken by a subsequent arbitration accord dated 24-11-2011 and the cheque dated 20-7-2012 ex facie appears to be connected with the said subsequent arbitration accord. This is also borne out from the finding in investigation carried out by the police. According to the investigating officer, the cheque issued amounting to Rs.2500,000 was by way of security, rather than for the discharge of liability to the tune of the amount mentioned in the said cheque. He further added that in terms of the award given by the Arbitrator, petitioner owes only Rs.6,50,000. Be that as it may, we would not like to go into depth of the issue lest it may prejudice anyone during investigation or trial. But the case in hand begs a  question  as  to what constitutes an offence under section 489-F, P.P.C. Every transaction where a cheque is dishonored may not constitute  an  offence.  The  foundational  elements  to  constitute  an offence under this provision are issuance of a cheque with dishonest intent,  the  cheque   should  be  towards  repayment  of  a  loan  or fulfillment of an obligation and lastly that the cheque in question is dishonored.

7.         In the instant case, prima facie, the circumstances indicate that the cheque in question was not issued towards repayment of some outstanding  loan  or  fulfillment  of  an  existing  obligation  but  instead it  had  been  issued  to  meet  a  possible  future  obligation  if determined as a result of  some other  exercise.  That  being  so,  one  of the  foundational  elements  of  section  489-F, P.P.C. is prima facie missing. The invocation of penal provision would therefore remain a moot  point.  The  ground  that  prosecution  is  motivated  by  malice may not in these circumstances be ill-founded. Consequently, this petition is converted into appeal and allowed and subject to petitioner's furnishing bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court, he shall remain on pre-arrest bail.

MWA/A-30/SC                                                                                   Petition allowed.

2006 Y L R 406

[Lahore]

Before Sh. Javaid Sarfraz, J

MAZHAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3225-B of 2005, decided on 28th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of--Business dealing existed between accused and complainant and due to said dealings cheque in question was handed over to complainant---Amount of cheque in question, had already been paid to complainant in due course of time and said cheque was not to be presented to Bank for encashment---In order to attract S.489-F, P.P.C., element of dishonesty should be shown, which element was absent in the present case as amount had already been paid to the complainant---Dishonouring of cheque would not mean that criminal case be registered forthwith, but purpose for which cheque was issued should be taken into account before initiating criminal action---Accused, in circumstances had made out a case of further inquiry into his guilt---Offence with which accused was charged being punishable only with three years' R.1., would not fall within prohibitory clause of S.497, Cr. P. C.---Grant of bail, in such-like cases, was a rule and its refusal an exception--Pre-arrest bail already granted to accused, was confirmed in circumstances.

Major Anwar-ul-Haq v. The State PLD 2005 Lah.607; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Ali Murtaza v. The State 2005 PCr.LJ 1773 ref.

Ahmad Raza for Petitioner.

Muhammad Yosuaf Syed for the State with Jasel Khan Awan, S.I., P.S. Fateh Sher, District Sahiwal.

ORDER

SH. JAVAID SARFRAZ, J.---The petitioner, Mazhar Iqbal, seeks pre-arrest bail in case bearing F.I.R. No.80 of 2005, dated 6-4-2005, under section 489,-F, P.P.C. registered at Polcie Station Fateh Sher, District Sahiwal.

2. According to the contents of the F.I.R., the petitioner-accused is alleged to have issued a Cheque No.5037317, dated 30-12-2004 for Rs.50,000 drawn on PICIC Bank Limited in the name of Zafar Iqbal, the complainant. This cheque was dishonoured on presentation to the Bank. Accordingly, the case was registered against the present petitioner.

3. Learned counsel for the petitioner submits that there was a business dealing with the petitioner and the complainant and it was due to these dealings that this cheque of Rs.50,000 was handed over to the present complainant. It is further submitted that in due course of time this amount has already been paid to the complainant and the cheque was not to be presented to the Bank for encashment. Learned counsel for the petitioner further submits that in order to prove his bona fide the petitioner has already deposited Rs.50,000 with the police and concludes that there was no element of dishonesty.

4. The learned State counsel has vehemently opposed this petition.

5. According to the petitioner, there was a business relationship between him and the complainant, in which they used to purchase second hand cars and sell the same. In this regard a cheque of Rs.50,000 had been given to the present complainant but this amount has already been subsequently paid to him. In order to attract section 489-F, P.P.C., element of dishonesty should be shown and dishonouring of cheque does not mean that criminal case be registered forthwith. The purpose for which the cheque is issued should be taken into account before initiating criminal action. Major Anwar-ul-Haq v. The State (PLD 2005 Lahore 607) is referred. The petitioner, under the circumstances, has made out a case of further inquiry requiring further prove into his guilt.

6. The offence so charged is punishable only with three years' R.I. and it does not fall within the prohibitory clause. As held by the Hon'ble Supreme Court of Pakistan in Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34) that in such-like cases the grant of bail is a rule and refusal thereto is an exception. While relying on Ali Murtaza v. The State (2005 PCr.LJ 1773 [Lahore]); the pre-arrest bail already granted to the petitioner, vide order dated 14-11-2005, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Illaqa Magistrate.

7. The Illaqa Magistrate is directed to deposit/invest Rs.50,000 lying with the Investigating Officer of this case in any Government Profitable Scheme of National Savings Centre. The party found entitled to this amount shall also take the profit accrued thereupon.

8. With the above direction, this petition is allowed.

H.B.T./M-1448/L                                                                                Bail confirmed.