S. 489-F--Dishonored of cheque--Recovery of amount--Bail after arrest, grant of--Invested amount in car showroom--Demanded back--Presented cheque was dishonored--Dishonestly issued .........................
PLJ 2024 Cr.C. (Note) 254
[Lahore High Court, Lahore]
Present: Ali Zia Bajwa, J.
SHAHZAD HAIDER--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 39176-B of 2024, decided on 19.7.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonored
of cheque--Recovery of amount--Bail after arrest, grant of--Invested amount in
car showroom--Demanded back--Presented cheque was dishonored--Dishonestly
issued cheque--The Supreme Court also held that question whether cheque was
issued towards repayment of loan or fulfillment of an obligation within meaning
of Section 489-F, PPC would be resolved by trial Court after recording of
evidence--The petitioner is behind bars since date of his arrest and no more
required to investigating agency for purpose of further investigation--No
useful purpose would be served by keeping accused petitioner behind bars for an
indefinite period.
[Para
5 & 6] C & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Punishment of offence provided under Section
489-F, PPC is not more than three years, as such, same is not covered under
sub-section (1) of Section 497, Cr.P.C--To grant bail in such like cases is a
rule and refusal an exception--Law Officer and learned counsel for complainant
could not point out any exceptional
circumstances. [Para 5] A
PLD 1995 SC 34, PLD 2017 SC 733, 2022 SCMR 592, 2022 SCMR
1467 and 2023 SCMR 2122.
Recovery of Amount--
----Wherein Supreme Court of Pakistan held that for recovery
of amount, civil proceedings provide remedies under Order XXXVII of CPC,
whereas provision of Section 489-F, PPC cannot be used as a tool for recovery
of amount in question. [Para
5] B
2023 SCMR 1977.
Mian Izhar Ahmad, Advocate for Petitioner.
Ms. Asiya Yaseen, DDPP for State.
Mr. Abdul Rashid Hijazi, Advocate for
Complainant.
Date of hearing: 19.7.2024.
Order
Through this petition filed under Section 497, Cr.P.C., the
petitioner seeks his post-arrest bail in case FIR No. 2218/2023, dated
17.10.2023, registered under Section 489-F, PP.C. with Police Station
Ghallah Mandi, District Sahiwal.
2. Precisely the
allegation against the petitioner as per contents of the crime report is that
he dishonestly issued one cheque of Rs. 89,16,750/- in favor of the
complainant, which was dishonored on its presentation before the concerned Bank
for encashment.
3. Arguments heard
and the record perused.
4. There is an
unexplained delay of about one month in lodging the FIR, which shows
deliberation and consultation on the part of the complainant.[1] As per crime report, the petitioner
was running show room of the vehicles, wherein the complainant invested an
amount of Rs. 2,13,20,000/-. After some time, the complainant demanded back his
invested amount from the petitioner, who issued two cheques against the
outstanding amount, out of which, the complainant presented the
cheque in question, which was dishonored. On the other hand, learned counsel
for the petitioner submits that after closing the business with the
complainant, the petitioner did not issue the cheque in question against any
liability or financial obligation. However, such controversy would be resolved
during trial after recording of evidence.
5. It has been
observed by this Court that maxim punishment of offence provided under Section
489-F, PPC is not more than three years, as such, the same is not covered under
sub-section (1) of Section 497, Cr.P.C. To grant bail in such like cases is a
rule and refusal an exception.[2] Learned Law Officer and learned
counsel for the complainant could not point out any exceptional circumstances
warranting dismissal of the instant post-arrest bail petition. Further reliance
can be placed on cases titled “Abdul Saboor versus The State through
A.G. Khyber Pakhtunkhwa and another” (2022 SCMR 592), “Nazir
Ahmad alias Bhaga versus The State and others” (2022 SCMR 1467)
and “Noman Khaliq versus The State and another” (2023 SCMR
2122), wherein the Supreme Court of Pakistan held that for recovery of amount,
civil proceedings provide remedies under Order XXXVII of CPC, whereas provision
of Section 489-F, PPC cannot be used as a tool for the recovery of the amount in
question. In Noman Khaliq supra as well as case titled “Zafar
Nawaz versus The State and another” (2023 SCMR 1977), the Supreme
Court also held that the question whether the cheque was issued towards
repayment of loan or fulfillment of an obligation within the meaning of Section
489-F, PPC would be resolved by the trial Court after recording of evidence.
6. The petitioner
is behind the bars since the date of his arrest and no more required to the
investigating agency for the purpose of further investigation. No useful
purpose would be served by keeping the accused petitioner behind the bars for
an indefinite period.
7. Resultantly, the
instant bail petition is allowed and the petitioner is
admitted to post-arrest bail, subject to his furnishing bail bonds in the sum
of Rs. 5,00,000/- (Rupees five hundred thousand only) with one surety in the
like amount to the satisfaction of the trial Court.
8. It is expected
that the trial Court shall conclude the trial of this case expeditiously
preferably within three months and in this respect, if the petitioner does not
co-operate with the trial Court, it shall amount to misuse the concession of
bail, whereupon the complainant or the State will be at liberty to file an
application for cancellation of his bail.
(A.A.K.) Petition
allowed
[1]. “Muhammad
Aslam versus The State and others” 2023 SCMR 397 and “Gul Muhammad
versus The State” 2023 SCMR 857.
[2]. Tariq
Bashir and others ys. The State” (PLD 1995 SC 34) & “Muhammad Tanveer
vs. The State” (P LD) 2017 Supreme Court 733).