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-
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.
Thank you for posting something about bails. Many people don't know about it.
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