ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-303 of 2019

 

Date

               Order with signature of Judge

           

                                                    

             

Applicant:                               Abdul Qadir Shah

                                                Through Mr.Mumtaz Ali Junejo

                                                Advocate.

 

Respondent:                           Farman alias Latif Dino Shah

                                                Through Mr.Liaquat Ali Shar

                                                Advocate.

 

                                                The State

                                                Through Mr.A.R.Kolachi DPG.

 

Date of hearing:  17th June, 2019.

             

 

 O R D E R

 

Adnan-ul-Karim Memon, J:-   Applicant Abdul Qadir Shah is seeking Pre-arrest Bail in Crime No.73/2019,registered at Police       Station-A Section, Khairpur, for offence punishable under section             489-F PPC.

2.  Prosecution has put the case against the applicant that he agreed to purchase some piece of  land from the complainant in the sum of 45 Lacs, out of which he gave him Rs.1300,000/-  cash and for balance, amounting to Rs.32,00,000/- he issued a cheque No.CDA-25514286, dated 02.02.2019 of Sonehri Bank Khairpur in his favour, on presentation for encashment the same was dishonored because of closing of account of the applicant, such memo dated: 21.02.2019 was issued by the concerned Bank, compelling him to  lodge the aforesaid  FIR against the Applicant.  Investigating Officer recorded statements of prosecution witnesses. Finally, Investigating Officer submitted interim Charge Sheet before the competent Court. The Applicant moved pre- arrest Bail Application No.968 of 2019, before the learned Trial Court, which was dismissed vide Order dated 17.5.2019. The Applicant being aggrieved by and dissatisfied with the rejection of his pre-arrest Bail Application, approached this Court on 27.5.2019, and ad-interim Bail was granted to him vide order dated 28.5.2019 and since then he is on interim Bail.

3.         Mr. Mumtaz Ali Junejo, learned counsel for the applicant has contended that applicant is innocent and has been falsely implicated in the present case by complainant with ulterior motives; that there is unexplained delay of about 04 months in lodging of the FIR; that complainant has alleged that applicant/accused has purchased the land from him but failed to produce any agreement regarding sale/purchase of land; that applicant and complainant are partners and used to run business of sell and purchase of plots and due to some transaction the applicant has issued the cheque  amounting to Rs.32,00,000/- to the complainant and after some time, complainant had also issued cheque of Rs.36 lacs to applicant which was dishonored by the concerned Bank, as such the case of applicant requires further enquiry; that Complainant has not given description of alleged business nor he disclosed the exact purpose for giving Rs.32,00,000/-; that complainant has also not pointed out  that he issued a cheque in the sum of Rs. 36,00000 in his favour with malafide intention; that the alleged cheques was given to Complainant as surety and not fulfillment of any obligation or repayment of loan as portrayed by him; that the Complainant with malafide intention has fabricated a story of his own to attract Section 489-F of P.P.C; that the aforesaid section is not attracted in the present case; that the alleged offence under Section 489-F does not fall with the prohibition contained in Section 497(1) Cr.P.C, therefore, case against the Applicant requires further inquiry; that the whole case of the prosecution depends upon the documentary evidence which is available with the prosecution therefore, there is no question of tampering with the same; that the basic ingredients of Section 489-F are missing therefore, Applicant cannot be saddled with criminal liability; that the matter between the parties is of civil nature but, Complainant has converted it into a criminal case which requires further inquiry. He lastly prays for confirmation of grant of pre-arrest bail to Applicant. In support of contention, he relied upon in the case of Muhammad Sarfraz vs. The State (2014 SCMR 1032) and Saeed Ahmed vs. The State (1995 SCMR 170).

4.         Learned DPG for the State assisted by the learned counsel for the complainant flatly opposed for grant of bail to the present applicant/accused on the ground that applicant/accused not only committed fraud with the complainant and deprived him of the heavy amount of Rs.36, 00,000/- (Rupees thirty Six Lac) so also issued a check knowingly that the same would not be honored by the Bank. Per learned DPG, in the facts and circumstances of the case the applicant/accused is not entitled to grant of pre-arrest bail merely for the reason that the offence does not fall under the prohibitory clause under section 497 Cr. P.C.

5.    I have heard learned counsel for Applicant, learned D.P.G for State, learned counsel for Complainant and perused the material available on record as well as case law cited at the Bar.

6.  A perusal of section 489-F, P.P.C. reveals that the provision will be attracted if the following conditions are fulfilled and proved by the prosecution: ---

(i) issuance of the cheque;

(ii) such issuance was with dishonest intention;

(iii) the purpose of issuance of cheques should be:-

(a) to repay a loan; or

(b) to fulfill an obligation (which in wide term inter-alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance).

(iv) on presentation, the cheques are dishonored. However, a valid defence can be taken by the accused, if he proves that;-

(i) he had made arrangements with his bank to ensure that the cheques would be honoured; and

(ii) that the bank was at fault in dishonoring the cheque.

 

7.   The law on the aforesaid proposition is very clear that If the applicant/accused establishes the above two facts through tangible evidence and that too after the prosecution proves the ingredients of the offence then he would be absolved from the punishment.

8.   I am of the view that grant of pre-arrest Bail is an extra ordinary relief which is extended in exceptional circumstances when glaring malafide is shown on the part of prosecution to cause unjustified harassment and humiliation of person in case of his arrest.

9.   I am conscious of the fact that while deciding a bail application this Court has to make tentative assessment of the record which in this case is reflecting the following aspects:-

i. The complainant issued cheque of Rs.36-Lac in favour of the applicant and on its presentation on 19.02.2019 the same was bounced on the endorsement that payment stopped by the drawers, the reasoning of stoppage of payment has not been disclosed.

ii. Agreement regarding sale and purchase of agricultural land between the parties is available on the record.

iii. F.I.R discloses regarding sale and purchase of aforesaid agricultural land.

iv. The complainant has admitted to have received Rs.13-lacs out of Rs.45-lacs on account of sale and purchase of the land in question.

v. The alleged cheque of Rs.32-lac explicitly shows that the account of applicant was closed.

vi. Civil transaction between the parties appears to have been made.

10.  Issuance of cheque amount of Rs.32, 00,000/- (Rupees thirty two Lacs) by the applicant/accused to the complainant Farhan alias Latif and its dishonored by the Bank is an admitted fact on account of stopping of payment by the applicant. Memorandum of return of the cheque issued by the Bank reveals that the cheque was dishonored by the Bank with the objection “account closed stopped by the drawer”. The objection of the Bank prima facie established that the applicant/accused has deliberately stopped the payment in order to avoid payment of Rs.32, 00,000/- (Rupees thirty two Lacs) to the complainant. The reasoning of the applicant prima-facie show the aforesaid factual position of the case, therefore the learned trial Court has yet to determine whether on account of some business transaction between the parties the alleged cheque was issued in favour of the complainant or otherwise and on presentation, the same was returned on account of clouser of the account of the applicant

11.   I have noted that Applicant is charged with offence punishable under section 489-F P.P.C. maximum sentence for which is three years imprisonment thus, the same does not fall within prohibitory clause of section 497 Cr.P.C. Complainant has not given description of alleged business, as to how, when and by what process various exchanged between the parties, these factual aspects of the matter will be determined by the learned trial Court at the time of recording of evidence. The case against Applicant is based on documentary evidence which is yet to be determined by Trial Court. I am fortified by the decision rendered by the honorable Supreme Court in the case of Muhammad Sarfraz vs. The State (2014 SCMR 1032) wherein bail was granted for the offence under section 489-F P.P.C and in the case of Saeed Ahmed vs. the state (1995 SCMR 170) wherein concession of bail was extended to accused on the basis of documentary evidence.

12.       In view of tentative assessment of the record discussed supra the case of Applicant requires further inquiry as provided under section 497 (2) Cr.P.C. The Applicant has made out a case of confirmation of pre-arrest bail at this stage. In these facts and circumstances of the case, I am of the tentative opinion that Applicant/Accused has made out a case for grant of Pre-arrest Bail; hence, Interim Pre-arrest Bail granted to the Applicant vide Order dated 28.5.2019  is hereby confirmed  in the same terms and condition.

13.      The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage and in the meanwhile, if the Applicant fails to appear before the learned trial Court, his Bail may be cancelled by the learned trial Court without obtaining any order from this court.

14.         The instant Bail Application stands disposed of in the above terms.     

                                                               

                                                                                                          JUDGE