P L D 2013 Lahore 173
Before Ibad-ur-Rehman Lodhi, J
ABDUL SATTAR---Petitioner
Versus
THE STATE and another---Respondents
Criminal Miscellaneous Nos.16117-B, 16118-B, 16510-B,
15931-B and 15932-B of 2012, decided on 15th November, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.
489-F---Dishonestly issuing a cheque---Bail, grant of---Accused allegedly
issued a cheque to the complainant, which was dishonoured on
presentation---Complainant contended that there were five other cases similar
to present one registered against the accused, which established the fact that
accused was a habitual offender in issuing cheques, and that unless recovery of
amount was effected from accused, he was not entitled to be released on
bail---Validity---Although different F.I.Rs. had been registered against
accused for issuing cheques, which got dishonoured on presentation, but he was
not convicted in any one of them---Complainant
in a criminal
case under S.489-F,
P.P.C. could not ask
criminal court to
effect any recovery
of amount involved
in the cheque---Accused was
released on bail
in circumstances.
Shameel
Ahmed v. The State 2009 SCMR 174 ref.
(b) Penal Code (XLV of 1860)---
----S. 489-F
& Chaps. XVII [Ss.378 to 462] & XVIII
[Ss.463 to 489-F]---Dishonestly issuing a cheque---Recovery of cheque
amount---Scope---Complainant in a criminal case under S.489-F, P.P.C could not
ask a criminal court to effect any recovery of amount involved in the
cheque---Cheque amount involved in the offence under S.489-F, P.P.C was never
considered as stolen property---Had the same been treated as stolen property,
the investigating agency would certainly have been equipped with a power
to recover said
amount as provided
under Chap. XVII,
P.P.C---Section 489-F, P.P.C had been inserted in Chap. XVIII, P.P.C, under
which only remedy provided for the prosecution was the conviction of accused
and no process for recovery could be effected.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.
489-F---Dishonestly issuing a cheque---Bail---Cheque issued for a huge
amount---Recovery of cheque amount---Complainant opposing grant of bail to
accused on the ground that huge amount was involved and recovery was yet to be
effected---Police requesting physical remand of accused and cancellation of
bail in order to facilitate process of recovery of amount in
investigation---Validity---No such process could be allowed to be adopted
either by courts dealing with matter of remand or trial of the offence under
S.489-F, P.P.C, or the investigating agency to effect recovery.
(d) Penal Code (XLV of 1860)---
----Ss. 489-F & 384---Dishonestly issuing a
cheque---Bail---Cheque issued as guarantee/security---Recipient of the cheque
using the same to exert pressure on the issuer to force him to surrender to his
illegal demands---Such misuse of S.489-F, P.P.C for the purpose of securing
money would be termed as extortion.
Malik
Saleem Iqbal Awan for Petitioner.
Chaudhary
Karamat Ali, Addl. Prosecutor-General for the State with Hamid Ullah ASI.
Ghulam
Hussain Malik for the Complainant.
Bashir
Abbas Khan for the Complainant in Crl.Misc.No.15931-B of 2012.
ORDER
IBAD-UR-REHMAN
LODHI, J.---This order shall dispose of the
following bail petitions:-
(i) Crl.Misc.No. 16117-B of 2012.
(ii) Crl.Misc.No. 16118-B of 2012.
(iii) Crl.Misc.No. 16510-B of 2012.
(iv) Crl.Misc.No. 15931-B of 2012.
(v) Crl.Misc.No. 15932-B of 2012.
as the same are filed on behalf of one person.
2. In
Crl.Misc.No.15931-B of 2012 and Crl.Misc.No.16117-B of 2012, the complainants
of the case opposed the concession of bail to the petitioner.
3. The
allegation against the petitioner is that he issued a cheque to the
complainant, which on presentation was dishonoured and, therefore, a criminal
case under section 489-F, P.P.C. was registered against him, and he as arrested
on 1-12-2011 in Criminal Miscellaneuos No. 16117-B of 2012.
4. The petition
is opposed on the ground that these are five cases of similar nature against
the petitioner, which establishes the fact that the petitioner is a habitual
offender in issuing cheques, which would subsequently on presentation
dishonoured. The learned counsel for the complainant called the petitioner as a
record-holder and history sheeter.
He was
asked to show any conviction of the petitioner in any such like case, but the
response was that yet there is no conviction and only the F.I.Rs. have
been lodged against the petitioner by
mentioning the amounts involved in the cases.
5. The learned
counsel for the complainant attempted to make the case of grave nature and
expressed his views that unless the recovery of the amount, in question, is not
affected, the petitioner is not entitled to be released on bail.
6. Section
489-F, P.P.C. was originally inserted in Pakistan Penal Code, 1860 by Ordinance
LXXII of 1995, providing conviction for counterfeiting or using documents
resembling National Prize Bonds or unauthorized sale thereof and while the same
was part of the statute, again by virtue of Ordinance LXXXV of 2002, another Section
under the same number viz. 489-F of P.P.C. was inserted on 25-10-2002 providing
conviction and sentence for the persons guilty of dishonestly issuing a cheque
towards repayment of loan or fulfillment of an obligation, which is dishonoured
on its presentation. In that newly inserted section 489-F of P.P.C., the
maximum relief for the complainant of the case is the conviction of the
responsible person and punishment as a result thereof, which may extend to 3
years or with fine or with both. The cheque amount involved in the offence
under such section is never considered as a stolen property. Had this been
treated as a stolen property, the Investigating Agency would certainly have
been equipped with a power to recover the amount also as is provided in Chapter
XVII of P.P.C. relating to offences against property. The offence under section
489-F, P.P.C. is not made part of the said Chapter providing the offences and
punishments of offences against property, rather in fact the same has been
inserted in Chapter XVIII of P.P.C., regarding offences relating to documents
and to trade of property marks.
7. In the cases
registered under Chapter XVII, the police in case of theft, extortion, dacoity,
robbery and breach of trust is empowered to even get recovery of the
subject-matter of crime, but in the cases registered under Chapter XVIII, the
only remedy provided for the prosecution is the conviction of the accused and
no process of recovery can be effected for the offences relating to documents
or trade of property marks.
8. When on
25-10-2002, Section 489-F, P.P.C. was inserted in P.P.C., Order XXXVII, C.P.C.
was already a part of statute book providing the mode of recovery of the
amounts subject-matter of negotiable instruments and a complete trial is
available for the person interested in recovery of the amounts of a dishonoured
cheque, therefore, not only that the complainant in criminal case under section
489-F, P.P.C. cannot ask a Criminal Court to effect any recovery of the amount
involved in the cheque, but also the amount whatsoever high it is, would not
increase the volume and gravity of the offence. The maximum punishment provided
for such offence cannot exceed from 3 years. Even this conviction of 3 years is
not an exclusive punishment. By using word "or" falling in between
the substantive sentence and the imposition of fine, the Legislature has
provided the punishment of fine as an independent conviction and this type of
legislation brings the case of such nature outside the scope of prohibitory
clause of section 497, Cr.P.C. The possibility cannot be ruled out and it would
remain within the jurisdiction of trial Court that ultimately the sentence of
fine independently is imposed and in such eventuality, nobody would be in a
position to compensate the accused for the period he has spent in incarceration
during trial of offence under section 489-F, P.P.C.
9. I have
experienced that in almost every case, where an accused applies for the
concession of bail in case under section 489-F, P.P.C., it is oftenly opposed
on the ground that huge amount is involved and it is yet to be recovered. The
police agency also request for the physical remand of the accused and the
cancellation of bail in order to facilitate the process of recovery of the
amount, in question, in criminal investigation. No such process can be allowed
to be adopted either by the Courts dealing with the matter of remand or trial
of the offence under section 489-F, P.P.C. or the Investigating Agency to
effect recovery.
10. In business
circles, the issuance of cheques for security purposes or as a guarantee is a
practice of routine, but this practice is being misused by the mischief-mongers
in the business community and the cheques, which were simply issued as surety
or guarantee are subsequently used as a lever to exert pressure in order to
gain the unjustified demand of the person in possession of said cheque and then
by use of the investigating machinery, the issuer of cheque is oftenly forced
to surrender to their illegal demands and in the said manner, the provisions of
this newly inserted section of law are being misused. Securing the money in
such manner would be termed as extortion.
11. The learned
counsel for the complainant by placing reliance on the case of SHAMEEL AHMED
v. THE STATE (2009 SCMR 474) has further
argued that the accused of such like cases are not entitled to be released on
bail merely on the ground that the maximum punishment provided for such offence
is 3 years.
12. The learned
counsel for the complainant has not gone into details of the cited judgment of
the apex Court. It is held in the cited case that it is discretion of every
Court to grant the bail, but such discretion should not be arbitrary, fanciful
or perverse. It was a case of cancellation of bail and the bail allowed to a
person was cancelled, who remained fugitive from law for a long period and
during almost one year after registration of the case, neither he applied for
pre-arrest bail nor surrendered before any Court and in the said matter, the
High Court had already directed the trial Court to conclude the trial within
four months and in such background, apex Court found it proper not to interfere
in the findings of the High Court. The other factors, which have been discussed
above were not raised before the Hon'ble Supreme Court of Pakistan while
dealing with Shameel Ahmed's case.
13. For what has
been discussed above, the petitioner, who is behind the bars since 1-12-2011 is
entitled to be released on bail and, therefore, this petition is allowed and the petitioner is ordered to be released
on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with
one surety in the like amount to the satisfaction of the learned trial Court.
MWA/A-5/L Bail
granted.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
2013 Y L R 374
[Lahore]
Before Muhammad Anwaarul Haq, J
IMTIAZ AHMED---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.9745-B of 2011, decided on 26th
August, 2011.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly
issuing a cheque---Bail, grant of---Accused had given dishonoured cheque to the
complainant in the backdrop of a business deal of purchase of rice and the
accused had already paid part of purchase price to the complainant---Remaining
amount of purchase price was withheld owing to a dispute as to the quality of
the supplied consignment---Whether the cheque was issued dishonestly in the
circumstances of the case, was a matter to be determined by the Trial Court
after recording of evidence---Accused had been behind bars for more than three
months without any progress in his trial---Alleged offence against accused not
falling within prohibitory clause of S. 497, Cr.P.C and accused having no
previous criminal record, he was admitted to bail.
Rana
Shahbaz Ali Khan for Petitioner.
Mirza Abid
Majeed, Deputy Prosecutor-General for the State.
Nemo for
the Complainant.
ORDER
MUHAMMAD ANWAARUL HAQ,
J.---Through this petition, Imtiaz
Ahmed petitioner has sought post-arrest bail in case F.I.R. No.192, dated
16-3-2011, for an offence under section
489-F, P.P.C. registered at
Police Station Muradpur, District Sialkot.
2. Learned
counsel for the petitioner contends that the petitioner is innocent and has
falsely been roped in this case; that the matter between the parties is purely
of rendition of accounts as admittedly there was a business deal of purchase of
rice and the complainant admits that an amount of Rs.18,24,000 was paid by the
petitioner to him. Further contends that remaining amount of Rs.2,76,000 was
withheld because of the poor quality of the product and the disputed cheque
mentioned in the F.I.R. was given to the complainant as a guarantee; that the
offence against the petitioner does not fall within the prohibitory clause of
section 497, Cr.P.C.; that the petitioner has no previous criminal record; that
in the circumstances case against the petitioner is one of further inquiry into
his guilt and that he is behind the bars since 24-5-2011 without any
substantive progress in his trial.
3. Conversely,
learned Deputy Prosecutor-General opposing this bail application contends that
the petitioner is specifically nominated in the F.I.R; that he has deprived the
innocent complainant from an amount of Rs.2,76,000; that issuance of the
disputed cheque by the petitioner is admitted and dishonouring of the same is
sufficient to constitute an offence under section 489-F, P.P.C.; and that mere
non-falling of an offence within prohibitory clause does not entitle any
accused to be released on bail as a matter of right.
4. Heard.
Record perused.
5. Admittedly,
the dishonoured cheque was given by the petitioner to the complainant in the
backdrop of a business deal of purchase of rice and the petitioner had already
paid an amount of Rs.18,24,000 to the complainant. Statedly remaining amount of
Rs.2,76,000 was withheld as there was a dispute on the quality of the supplied
consignment. The question whether the cheque was issued dishonestly in the
peculiar circumstances of the case, is a matter to be determined by the learned
trial Court after recording of some evidence. Petitioner is behind the bars
since 24-5-2011 i.e. more than three months without any progress in his trial
whereas the maximum punishment provided for the offence under section 489-F,
P.P.C. is imprisonment for three years and it does not fall within the
prohibitory clause of section 497, Cr.P.C., grant of bail in such like cases is
a rule and refusal is an exception. Investigation Officer present with record
states that the petitioner has no previous criminal record.
6. In view of
all above, I accept this petition and admit the petitioner to bail subject to
his furnishing bail bond in the sum of Rs.2,00,000 (Rupees two hundred thousand
only) with one surety in the like amount to the satisfaction of the learned
trial Court/Area Magistrate.
7. It is,
however, clarified that observations made herein are just tentative in nature
and strictly confined to the disposal of this bail petition.
MWA/I-4/L Bail
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.
2008 M L D 159
[Lahore]
Before Sh. Azmat
Saeed, J
IFTIKHAR AKBAR---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 1827-B of
2007, decided on 1st November, 2007.
(a) Penal Code (XLV of 1860)---
----S. 489-F---Issuance of cheque
subsequently dishonoured---Scope---Mere issuance of a cheque which is
subsequently dishonoured does not constitute an offence under S.489-F, P.P.C.,
unless same is issued dishonestly and for the repayment of a loan or for
discharging any obligation.
(b) Criminal Procedure Code (V of
1898)---
----S. 498---Penal Code (XLV of
1860), S.489-F---Pre-arrest bail, grant of---Section 489-F, P.P.C. nor any
other provision of the Penal Code could be employed or used as a tool for
effecting the recovery of a financial claim---Such being the exclusive
jurisdiction of the civil Court, to
permit the use of the criminal justice system for settlement of civil disputes
or effecting the recovery of the amounts claimed by a party, would amount to
abuse of the process of law---Even otherwise, mala fides of the police and the
complainant were not only floating on the surface but leaping
therefrom---Accused was in police custody in connection with another F.I.R. got
registered by the complainant, when in the police station the cheque in question
was procured and he had disclosed this fact on being produced before the
Magistrate which. was even apparent from the order of the Magistrate---Brother
of the accused had also been illegally detained who had to be recovered through
judicial process---Police had acted in a mala fide manner by becoming a
recovery agent of the complainant, rather than servants of the State enjoined
to uphold the law---Offence did not fall within the prohibitory clause of
S.497, Cr.P.C.---Cheque was already in the custody of the investigating agency
and nothing was to be recovered from the accused---Ad interim pre-arrest bail
granted to accused was confirmed in circumstances.
Talib Hussain v. The State 2007
PCr.LJ 1064; Ali Murtaza v. The State 2005 Cr. LJ 1773; Ghulam Qadir v. the
State 2007 YLR 1495; Shahid Aziz v. The State 2007 YLR 1810; Muhammad Nadeem v.
The State 2006 YLR 3043; Mehmood ul Hassanv. The State 2006 YLR 3013 and Liaqat
Hussain v. The State 2006 MLD 1661 ref.
Muhammad Tariq Nadeem for
Petitioner.
Sh. Imtiaz Ahmed for the State.
Ch. Pervez Aftab for the
Complainant.
ORDER
SH. AZMAT SAEED, J.---In terms of order, dated 16-8-2007 petitioner Iftikhar
Akbar was granted ad interim pre-arrest bail by this Court in case F.I.R.
No.81, dated 2-6-2007 registered with Police Station Old Kotwali Multan for the
offence under section 489-F, P.P.C.
2. The precise allegation against
the petitioner is that complainant 'Muhammad Shafqat Raza engaged in a
franchise business with telenor with huge investment, appointed the petitioner
as his accountant. It is the case of the prosecution that in the course of
rendition of accounts on 20-3-2007 shortfall of the amount of Rs.17,00,000 was
detected, in lieu whereof, the petitioner allegedly issued a cheque, which on
its presentation was dishonoured by the bank concerned.
3. Learned counsel for the
petitioner vehemently contends that it is a classic case for false implication
due to malice and business rivalry for petitioner's having relinquished job
with the complainant's franchise. Adds that petitioner victimization ensued
much prior to the lodging of instant F.I.R. by involving him in yet an other
concocted criminal case along with his new employer namely Sohail Ashraf vide
F.I.R. No. 186, dated 19-5-2007 PS Sadar Lodran under section 381, P.P.C. It is
asserted that in consequence of severe torture, petitioner was coaxed to hand
over the questioned cheque to the police so as to be made basis for the present
criminal case. Adds that this fact finds mention in the order of the Area
Magistrate, dated 23-5-2007. It was next asserted that petitioner also filed a
civil suit and injunctive order for encashment of the cheque has been issued.
Learned counsel next says that brother of the petitioner was abducted and
detained by a police functionary, and recovered after 5 days on account of the
intervention of the higher police functionaries, whereafter, an application
under section 22-A, Cr. P. C. is stated to have been moved before the ex
officio Justice of Peace. To substantiate his assertions, learned counsel
relies on 2007 PCr.LJ 1064 Talib Hussain v. the State, 2005 PCr.LJ 1773 Ali
Murtaza v. the State 2007 YLR 1495 Ghulam Qadir v. the State 2007 YLR 1810 and
Shahid Aziz v. the State.
4. Whereas learned counsel for the
complainant vehemently opposes the grant of bail reiterating that petitioner is
involved in a serious crime for having embezzled and deprived the complainant
of huge amount, hence, he does not deserve any discretionary relief at this
stage. .To supplement his assertions, relies on 2006 YLR 3043 Muhammad Nadeem
v. the State 2006 YLR 3013 Mehmood ul Hassan v. the State and 2006 MLD 1661
Liaqat Hussain v. the State.
5. I have considered the arguments
raised by the learned counsel for the parties and salient features emerging
from the facts and circumstances of the case.
6. Mere issuance of a cheque which
is subsequently dishonoured does not constitute an offence under section 489-F,
P.P.C. A bare perusal of the said provision makes it clear and obvious that
such cheque must be issued dishonestly and for the repayment of a" loan or
the fulfilment of an obligation. In the instant case, prima facie, the cheque
was issued while the petitioner was admittedly in police custody in connection
with an other F.LR. got registered at the behest of present complainant. Thus,
the question would obviously arise whether an act committed by a person while
in police custody could be deemed to be honest or dishonest. Furthermore, it
also needs to be examined, whether in the facts and circumstances of the case,
petitioner is entitled to the benefit of the exception as set forth in section
94; P.P.C.
7. There can be no escape from the
fact that section 489-F, P.P.C. nor any other provision of the P.P.C. can be
employed or used as a tool for effecting the recovery of a financial claim.
Such is the exclusive jurisdiction of the Court of civil jurisdiction and to
permit the use of the criminal justice system for settlement of civil disputes
or effecting the recovery of the amounts claimed by a party would amount to
abuse of the process of law. In the instance case, special summary procedure
for recovery of amount due under a negotiable instrument including a cheque is
already provided under Order XXXVII, C.P.C.
8. The legislature in its greater
wisdom has only prescribed punishment of three years for an offence under
section 489-F, P.P.C. which is well short of the quantum of punishment
attracting the prohibitory clause of section 497, Cr.P.C. Thus, the principles
that bail is to be granted in cases where the prohibitory clause is not
attracted is a rule and. denial thereof an exception would also apply to the
offence under section 489-F, P.P.C. To hold otherwise, merely because the
offence under such provision was financial in nature does not appear to be
plausible. Firstly, where the legislature even in the matters of financial
nature chose to place the offence within the mischief of the prohibitory clause
of section 497, Cr.P.C., the legislature provided the requisite quantum of
punishment e.g. 409, P.P.C. Furthermore, to treat the offence under section
489-F, P.P.C. on a different footing to other offences in the same Code with
the same punishment for purposes of the grant of bail would amount to reading
something into the provision which does not exist. This course of action is
also not permissible in law.
9. In the instant case, mala fide's
of the police and the complainant are not only floating on the surface but
leaping therefrom. It is a matter of record that petitioner was arrested and was
in police custody in connection with an other F.I.R. got registered by the
complainant. It was during the course of said incarceration in the police
station when and where the cheque in question was procured. Petitioner on being
produced before the Area Magistrate while still in custody disclosed the fact
that the cheque had been obtained from him during the course of his confinement
at the police station as is apparent from the order of the Magistrate, dated
23-5-2005. In addition thereto, brother of the petitioner was also illegally
detained who had to be recovered through judicial process. From the aforesaid,
it is clear and obvious that police acted in a mala fide manner by allowing
themselves to act as recovery agent of the complainant, rather than servants of
the State enjoined to uphold the law.
10. The upshot of the above
discussion is that there are numerous unanswered questions of fact and law
pertaining to the alleged commission of offence and prima facie local police
acted in a mala fide manner. Offence does not fall within the prohibitory
clause. No recovery is to be effected from the petitioner as the only article
to be recovered i.e., the cheque is already available with the investigating
agency.
11. For the foregoing facts and
reasons, and in line with this Court's order, dated 16-8-2007, I hereby confirm
petitioners' ad interim pre-arrest bail subject to his furnishing fresh bail
bonds in the sum of Rs.10,00,000 (ten Lacs) with two sureties each in the like
amount, to the satisfaction of the trial Court.
N.H.Q./I-50/L Pre-arrest
bail allowed.
CASE LAWS ON SECTION 489-F PPC
1. 2008 YLR 328: (Lahore)
Before Fazal-e-Miran Chauhan, J
Sec. 497(5) Penal Code .Sec 489-F P.P.C, Bail, Cancellation of ---- After transfer of investigation, the police, in the subsequent investigation, having declared accused as guilty, his case fell under sub-clause (ii) of S. 497(5), Cr. P.C.---Complaint,, who was necessary party, was not present at the time of granting bail to accused---Court confirmed bail before arrest of accused was found innocent and a compromise had also been effected between the parties, however in the subsequent investigation accused was found guilty--- After second investigation the police had collected record making out a reasonable ground for believing accused to be guilty of offence under Sec. 489-F, P.P.C, which was sufficient ground to re-call the earlier order obtained by misrepresentation--- Mere fact that offence against accused did not fall within prohibitory clause of S.497(1), Cr.P.C. bail could not be claimed as a matter of right—Bail granting order passed by the Court was recalled.
2. 2008 YLR 760 (LAH) :
Muhammad Akhtar Shabbir, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused seemed to be in habit of committing fraud with people--- Offence Under S, 489-F, PPC, though did not fall with in the prohibition as contained in S-497 Cr. P.C., but in the present case of Rs. 1,50,00,000/- was involved—If accused was released on bail, likelihood was of his absconsion from the country--- Cases which were not covered within the prohibition clause as contained in S-497, Cr.P.C, grant of in such cases through was a rule and refusal an exception, but in view of circumstances , the case was covered within the exceptional clause of the rule---Sufficient material being available on record to connect accused with the commission of the offence., bail petition of accused was dismissed.
3. 2008 YLR 762 (LAH) :
Fazal-e-Miran Chauhan, J
---- S, 497—Penal Code (XLV of 1860), S, 489-F—Bail Grant of—
Offence against accused did not fall within the prohibitory clause of S, 497, Cr.P.C. maximum punishment of which was only 3 years--- Accused was in jail for the last 2 months---dispute arose between the parties on account of business transaction and in that connection Civil litigation was pending between the parties before the competent Court—Accused was no more required by the police and nothing was to be recovered from him--- Keeping accused behind the bar for an indefinite period would not serve or advance the prosecution case and it would amount to punishment before the conviction, which was not permissible under Criminal jurisprudence—Accused was admitted to bail, in circumstances.
4. 2008 SCMR 164 :
Rana Bhagwandas. Acting CJ
Sardar M. Raza Khan, JJ
Sec. 497(5) Penal Code (XLV of 1860),Sec 489-F P.P.C, Dismissed.
Constitution of Pakistan (1973), Art,185(3)--- Application for cancellation of bail, refusal of--- Accused earlier had been admitted to pre-arrest bail which had been maintained by High Court—Bail of accused had been cancelled only due to his absence during trial and he was taken into custody—High Court thereafter refused the accused on bail---admittedly accused was a citizen also of Norvey and usually resided there--- High Court had rightly observed that the accused was never served in connection with proceedings at trial--- Trial Court had fallen into a misconception that absence of accused was bound to entail the cancellation of bail under the orders of High Court--- Sessions Court had maintained the Order of Trial Court without even hearing the accused whose bail stood cancelled and who was then in custody--- Reasons advanced by High Court for granting bail to accused did not suffer from any infirmity--- Leave to appear was declined to complainant in circumstances.
5. 2008 MLD 450 (Lah) :
M Bilal Khan J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused had been taken divergent stands at different times; at one stage he stated that he had been compelled by the S.H.O. to execute the cheques in question while he was in illegal custody at the Police Station whereas on another occasion he stated that since the complainant being a Police Official he forcibly procured the cheques from him---Accused had also filed a suit for permanent injunction seeking a stay order against presentation of cheques---Filing of Civil suit by accused instead of strengthening his case, had weakened the same---Accused did not deserve the concession of bail in view of peculiar facts and circumstances of the case.
6. 2008 P. Cr. L.J 412 (KAR) :
Syed Zawwar Hussain Jaffery, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Grant of—
Delay of 84 hours in lodging F.I.R was not explained properly—Complainant was not owner of property, but he had left rented premises after termination of tenancy--- Counter-suits between accused and complainant regarding such property were pending in Civil Court--- Accused had filed suit ten (10) days before occurrence--- Interim bail granted to accused was confirmed in circumstances.
7. PLJ 2008 Cr.C. (Lah) :
M Bilal Khan, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail Dismissed of—
Pray for –Dishonored of cheque—Prohibitory clause is no sufficient ground--Taking divergent stands at different times—Accused has been taking divergent stands at different times--- At one stage he stated that he had been compelled by SHO to execute the cheque in-question while he was in illegal custody at police station whereas an other occasion he stated that complainant was a police official therefore, he forcibly procured cheque from him--- Held: Offence does not attract prohibitory clause u/s 497(1) of Cr. P.C. by itself is not sufficient to grant concersion of post arrest bail---Peculiar facts and circumstances of the present case, accused does not deserve the concession of bail--- bail was dismissed.
8. PLJ 2008 Cr. C. (LAH) 63 :
M. Khalid Alvi, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Bail Before arrest, Dismissed of—
Prayer for –Cheque was dishonored—Contentions—Cheque-book has been stolen about 7 months prior to registration of case--- Accused has devised a new method of committing fraud by lodging an F.I.R. of method of committing fraud by lodging an F.I.R. of theft of cheque-book and thereafter fleecing money from the accused and issuing cheque out of that cheque book—Although offence is punishable with only three years but the conduct of the accused speaks volumes, therefore he is not entitle to extra-ordinary relief of bail before arrest.
9. 2008 MLD 159 (Lah) :
Sh. Azmat Saeed, J
a). S. 489-F --- Issuance of cheques subsequently dishonoured --- Scope --- Mere issuance of a cheque which is subsequently dishonoured does not constitute an offences under S. 489-F, P.P.C., unless same is issued dishonestly and for the repayment of a loan or for discharging any obligation.
b). ---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—Section 489-F, P.P.C. nor any other provision of the Penal Code could be employed or used as a tool for effecting the recovery of a financial claim --- Such being the exclusive jurisdiction of the civil court, to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by the party, would amount to abuse of the process of law --- Even otherwise , malafides of the police and the complainant were not only floating on the surface but leaping therefrom --- Accused was in police custody in connection with another F.I.R. got registered by the complainant, when in the police station the cheque in question was procured and he had disclosed this fact on being produced before the Magistrate which was even apparent from the order of the Magistrate – Brother of the accused had also been illegally detained who had to be recovered through judicial process---Police had acted in a mala fide manner by becoming a recovery agent of the complainant, rather than servants of the State enjoined to uphold the law--- Offencedid not fall within the prohibitory clause of S. 497, Cr. P.C. --- Cheque was already in the custody of the investigating agency and nothing was to be recovered from the accused --- Ad interim pre-arrest bail granted to accused was confirmed in circumstances.
10. 2008 P Cr. L.J. 701 (Lah) :
Abdul Shakoor Paracha, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Protective Bail, refusal of --- No mala fide appeared against the complainant or the Police --- High Court (Lahore), in circumstances declined to exercise its discretion to allow protective bail in a case which otherwise was registered in North-West Frontier Province.
11. 2008 YLR 1563 (Lahore):
Fazal-e-Miran Chauhan, J
--- S, 497 – Penal Code (XLV of 1860), S, 489-F --- Bail, refusal of --- Accused was named in F.I.R. with specific role of issuing a cheque to the complainant, which, was dishonoured on its presentation, which, prima facie, directly connected accused with commission of alleged offence --- Issuance of cheque in question was not denied by accused --- Section 489-F P.P.C. was added with intent to curb the tendency of issuing of cheques with the intention to cheat the others --- Cheque in question was issued by accused knowing that sufficient amount was not in his account; and steps were taken to ensure that the cheque would be encashed --- Intention of accused was to postpone the demand for the time being, by giving a cheque to the complainant with the knowledge that same would be dishonoured --- Bail, in such-like cases, would not to be granted in routine --- Bail petition was dismissed, in circumstances.
12. 2008 YLR 947 (Lahore):
Iqbal Hameed-ur-Rehman, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Pre-arrest Bail, refusal of --- Cheque issued by accused could not be encashed as the account was closed one day before its encashment --- Accused, thereafter, on the intervention of the respectables of the market, undertook to pay said amount and issued another cheque, which also was dishonoured and could not be encashed --- When accused was seeking pre-arrest bail and no mala fide had been proved against complainant and the police, pre-arrest bail could not be granted to him --- Mala fide on the part of accused and his brother, however was established --- Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of accused was to be taken into consideration --- No case for grant of pre-arrest bail having been made out, accused did not deserve to be granted extraordinary relief of pre-arrest bail --- Bail petition, was dismissed, in circumstances.
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