Cr. Bail Application No. 1808 of 2017
Date Order with Signature of the Judge
For hearing of bail application.
11th December, 2017.
Mr. Aamir Mansoob Qureshi, Advocate for applicant.
Ms. Seema Zaidi, Deputy Prosecutor General, Sindh.
Mr. Umar Farooq, Advocate for complainant.
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Aftab Ahmed Gorar, J.:- Applicant Muhammad Kamran Bhatti booked in case Crime No. 393/2016 registered with Police Station Mithadar, Karachi under section 489-F PPC approached this Court by filing the captioned application for post-arrest bail.
2. Learned counsel for the applicant submits that applicant has is innocent and he has been falsely implicated in this case by the complainant, who is a very influential person. He further submitted that applicant alongwith his brother was abducted by the complainant who had forcibly taken cheque book and now he is presenting the cheques one by one; the FIR has been lodged with the delay of nine months without explaining the plausible reason; civil litigations between the parties is also pending. Learned counsel for the applicant contended that alleged offence does not fall within prohibitory clause of section 497 Cr.P.C. to support his contentions, Learned counsel for the applicant relied upon the cases of MUHAMMAD TANVEER V/S THE STATE & ANOTHER (PLD 2017 Supreme Court 733), RIAZ JAFAR NATIQ V/S MUHAMMAD NADEEM DAR & OTHERS (2011 SCMR 1708) and ALI HAKIMUDDIN GHULAM ALI MANDVIWALA V/S THE STATE & ANOTHER (2009 MLD 1189).
3. Conversely, learned counsel for the complainant while placing on record copies of diary sheets in case No. 4813/2016, 762/2016 & 182/2016, agreements dated 15.04.2015, 10.09.2015, FIR Nos. 506/2015 PS Temooria, Karachi, 13/2016 PS Methadar Karachi, 75/2016 PS Methadar Karachi, FIR 393/2016 PS Methadar Karachi, diary sheets in case Nos.762/2016 & 182/2016, order dated 21.12.2016 passed in Crl. Misc. Application No.1802/2016 and copy of order dated 15.11.2017 passed in Crl. Bail Application No. 1812/2017 opposed the grant of bail. He submitted that applicant is guilty of offence and the story of abduction of applicant and signing the cheques is concocted one. He further submitted that applicant had filed an application under section 22-A Cr.P.C. to harass and pressurize the complainant which was dismissed by the competent court of law. He argued that applicant is habitual offender of committing the offences of such nature. He is involved in number of like cases. He further submitted that the conduct of applicant before the trial court is not good for which diary sheets submitted today may be perused hence applicant is not entitled for concession of bail.
4. Learned Deputy Prosecutor General, Sindh while adopting the submissions of learned counsel for the complainant added that specific roll of applicant has been assigned in the FIR hence she raised objection to the grant of bail.
5. I have given my deep thought to the arguments of learned counsel for the parties and perused the available record.
6. Per FIR, complainant being bank manager had executed agreements on 15.04.2015 and 10.09.2015 with applicant whereby he (applicant) had to pay Rs.42600000/- to the complainant hence issued cheque of Rs.6000000/-, which on its presentation before the concerned bank, was dishonoured.
7. It may be advantageous to mention here that for to constitute an offence under section 489-F PPC, 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.
8. In the present case, the cheque for a huge amount was issued by the applicant on for fulfillment of obligations in terms of agreements dated 15.04.2015 and 10.09.2015 with the knowledge that sufficient amount is not available in his account to honour the cheque and thus there was prima facie the element of dishonesty on the part of the applicant and that the cheque was dishonoured at the bank’s counter is now part of the record of the case. Thus on all fours, the provisions of section 489-F PPC 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.
9. The mere fact that the offence for which the applicant is charged does not attract the prohibitory limb of section 497 Cr.P.C cannot per se make him entitled to the concession of bail. Grant of bail in such like cases is not a rule of universal application as each case merits decision on the basis of its own facts and circumstances. Reliance in this respect may advantageously be placed on the cases of MUHAMMAD SIDDIQUE V. IMTIAZ BEGUM AND 2 OTHERS (2002 SCMR 442) and SHAMEEL AHMED V. THE STATE (2009 SCMR 174).
10. Apart from the above, the documents placed on record by the counsel for the complainant reflect that applicant is habitual offender of committing such type of offences and is involved in number of cases. The diary sheets placed on the record by the counsel for complainant also reflect 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.
11. 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/S THE STATE (PLD 1986 Supreme Court 211) and THE STATE V/S THE ZUBAIR & 4 OTHERS (PLD 1986 Supreme Court 163). 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, this bail application is dismissed.
12. 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.
*Aamir/PS* J U D G E