2023 Y L R Note 33
[Sindh]
Before Aftab Ahmed Gorar, J
LIAQUAT ALI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No. S-1973 of 2021, decided on 15th
December,
2021.
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a
cheque---Pre-arrest bail, refusal of---Business transaction---Scope---
Accused sought pre-arrest bail in an FIR lodged under S. 489-F, P.P.C.---
Record reflected that there was business relations between the
accused and complainant and the accused had given cheque to the
complainant for business obligations, which, on presentation before
the concerned Bank, was dishonoured---Being account holder the
accused was in full knowledge that how much amount was lying in the
account---Provisions of S. 489-F, P.P.C., were squarely attracted in the
case---Complainant could not be bound down to seek his remedy by
approaching the civil court through a recovery suit when there was no
legal embargo on him not to press into service the penal provisions
against the delinquent through the registration of an FIR---Accused
had failed to show a single mala fide on the part of
complainant/prosecution to falsely implicate him in the case and there
appeared no reasonable ground to believe that he was not guilty of the
offence alleged against him---Accused being linked with the
commission of offence was held disentitled to the concession of bail---
Accused, present in court, was taken into custody and remanded to
central jail---Bail application was dismissed, in circumstances. [Paras.
5, 6 & 9 of the judgment]
(b) Penal Code (XLV of 1860)---
----S. 489-F---Dishonestly issuing a cheque---Essential ingredients---
Scope---To constitute an offence under S. 489-F, P.P.C. three ingredients
have to be there: (a) cheque issued with dishonest intention; (b)
towards repayment of a loan or fulfillment of an obligation and (c) the
cheque is dishonoured on presentation. [Para. 5 of the judgment]
(c) Criminal Procedure Code (V of 1898)---
----S. 498--- Pre-arrest bail--- Tentative assessment---Scope---For
deciding the bail application the court has to observe the material in a
tentative manner and deeper appreciation of evidence is not required.
[Para. 7 of the judgment]
Saleh Muhammad v. The State PLD 1986 SC 211 and The State v.
Zubair and 4 others PLD 1986 SC 163 ref.
Ms. Saba Soomro along with Applicant.
Ms. Rahat Ehsan, Addl. P.G., Sindh for the State.
Date of hearing: 15th December, 2021.
ORDER
AFTAB AHMED GORAR, J.---The applicant, booked in FIR No. 26/
2019 under section 489-F, P.P.C. registered with Police Station
Bahadurabad, Karachi, was admitted to pre-arrest bail vide order
dated 20.10.2021 and today the matter is fixed for confirmation of said
pre-arrest bail or otherwise.
2. I have heard the learned counsel for the parties and perused the
record.
3. Learned counsel for the applicant while reiterated the grounds
mentioned in the memo. of bail application submitted that the dispute
is purely of civil nature and the complainant with mala fide intention
has lodged the FIR. She further submitted that the applicant is
regularly appearing before the trial court as well as this court and not
misused the concession of bail hence she prayed that interim pre-
arrest bail granted to the applicant may be confirmed.
4. Learned Additional Prosecutor General Sindh opposed the
confirmation of bail on the ground that the applicant has dishonestly
issued the cheques in question knowing that no sufficient funds are
available in his account and the issuing cheques as security is
concocted story. She contended that there is sufficient material
available with the prosecution which connects the applicant with the
commission of alleged offence hence she prayed that bail application
may be dismissed.
5. Tentative assessment of the record reflects that there is business
relations between the applicant and complainant and in this regard
the applicant has given cheque for business obligations to the
complainant, which on presentation before the concerned bank, were
dishonoured. Being account holder the applicant was in full
knowledge that how much amount is lying in the account. It may be
advantageous to mention here that to constitute an offence under
section 489-F, P.P.C., the following ingredients have to be there:
(i) Cheque issued with dishonest intention.
(ii) Towards repayment of a loan or fulfillment of an obligation and
(iii) The cheque is dishonoured on presentation.
6. In the present case, the cheque was issued by the applicant for
fulfillment of business obligations with the knowledge that sufficient
amount is not available in the account to honour the cheques and thus
there was prima facie the element of dishonesty on the part of the
applicant and that the cheques were dishonoured at the bank's
counter are now part of the record of the case. Thus on all fours, the
provisions of section 489-F, P.P.C. are squarely attracted in the present
case. Moreover, the complainant cannot be bound down to seek his
remedy by approaching the civil court through a recovery suit when
there is no legal embargo on him not to press into service the penal
provisions against the delinquent through the registration of an FIR.
7. It may not be out of place to mention here that the issuance of
cheques which are in turn dishonoured has taken our society by storm
so much so that such instrument is looked upon by the beneficiary
with a degree of doubt and skepticism till it is honoured by the
concerned bank. Such practice has also eroded the mutual trust of the
general public and there are instances when people shy away from
accepting cheques even from trustworthy persons. Moreover, no one is
supposed to commit the financial murder of another member of the
society. Even otherwise, it is settled that for deciding the bail
application the court has to observe the tentative assessment and
deeper appreciation of evidence is not required and it will not be fair
to go into discussion about the merits of the case at this juncture. In
this respect reliance is being placed on the cases of Saleh Muhammad
v. The State (PLD 1986 Supreme Court 211) and The State v. Zubair and
4 others (PLD 1986 Supreme Court 163).
8. Apart from the above, the record also reflects that conduct of
applicant was not good as he was not appearing before the court and
had sought adjournments on one or the other pretext. The bail
applications earlier filed by the applicant i.e. Crl. Bail Applications
Nos. 74 and 1772 of 2021 were dismissed due to appearance of the
applicant. In the case of Muhammad Jahangir Khan and others v. The
State and others reported in 2020 SCMR 1270, the Hon'ble Supreme
Court of Pakistan has held that "the impugned order whereby pre-
arrest bail petition of accused persons was dismissed showed that case
had been called repeatedly but neither the accused person nor their
counsel turned up before the High Court, despite it being a pre-arrest
bail wherein personal appearance of the accused persons was
mandatory, in such circumstances, the accused persons were not
entitled to the extra ordinary concession of pre-arrest bail."
9. The applicant has failed to show a single mala fide on the part of
complainant / prosecution to falsely implicate him in the case and
there appear no reasonable ground to believe that he was not guilty of
the offence alleged against him. Thus taking a tentative assessment of
the available record, the applicant being prima facie linked with the
commission of the offence is held disentitled to the concession of bail.
Resultantly, the interim pre-arrest bail granted to the applicant vide
order dated 20.10.2021 is recalled and the Bail Application is
dismissed. The applicant is present in court he is taken into custody
and remanded to Central Jail, Karachi.
10. The above bail order has been passed by me in the format
prescribed
by the Honorable Supreme Court in the case of Nazir Ahmed v. The
State
reported in PLD 2014 SC 241, whereby I have not reproduced the
entire contents of the FIR as well as the details of the arguments so
raised by the learned Counsel for the applicant as well as complainant.
11. Before parting with this order, it is directed that any
observations recorded in this order, being purely tentative in nature,
should in no way prejudice the proceedings before the learned trial
Court where the case be decided on its own merits.
SA/L-1/Sindh Bail recalled.
;
