ORDER SHEET
Date: Order with signature of Judge
Cr.Misc. No. 87/2007
25.2.2008
Mr.S.Naqi Mirza, Advocate for the applicant.
Mr.Aga Zafir, AAG for the State.
Mr. Ehsan Raza, Advocate for Respondent No.2.
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MUHAMMAD AFZAL SOOMRO, C.J. Respondent No.2 Sajid Mehdi was granted interim bail by the trial Court which was confirmed on 12.4.2007. The complainant being dissatisfied with the said order has filed the present application for cancellation of bail.
The brief facts of the case are that the complainant had business dealings with respondent No.2, who owed the applicant about 5 lacs . The applicant/complainant in lieu thereof issued five cheques on the MCB Gulistan-e-Jauhar in favour of the applicant. All the cheques were dishonoured.The applicant kept on reminding the respondent for payment of the same but the said money was misused by the respondent.The respondent did not pay the said amount.
The learned counsel for the applicant/complainant contended that as per settled law for pre-arrest bail malafide, malicious prosecution is the only valid lawful ground which does not exist in the circumstances of this case; that it is not a civil nature case and even in civil cases criminal liabilities/acts are never lost sight of and the learned superior courts have never quashed criminal proceedings; that prima facie case of bouncing cheque has been made out and lastly contended that in these circumstances the bail granted to the applicant by the trial Court may be cancelled. He has relied upon the cases of Mst. Qudrat Bibi vs. Muhammad Iqbal and others (2003 SCMR 68), wherein it is held that concession of bail before arrest is granted to an accused if it is established that his involvement in the case in based on malafides by the prosecution, Syed Rashid Hussain vs. Muhammad Ismail and ors (1076 P.Cr.L.J. 673) wherein it has been held that cheating-accused persons in five transactions purchasing wheat and issuing cheques in payment but cheques dishonoured for no balance . Question whether at time of issuing cheques accused had no intention to make payment depending on evidence yet to be recorded by trial Court. Mere fact that a case of civil liability also made out was not sufficient for quashing criminal proceedings and lastly Dodo Khan vs. Jalaluddin and others ( PLD 1973 Karachi 554) to the same effect.
Learned AAG has supported the impugned order.
Learned counsel for the respondent No.2/accused contends that accused and complainant were business partners and all cheques were given to him as security of the loan provided by the accused; that the accused deals in surgical instruments and in the month of Nov. 2005 the accused invested Rs.100,000/- and complainant invested Rs.10,00,000/-. Thereafter profit or loss used to be distributed on quarterly basis. All ledgers are in possession of the complainant; thereafter some tussle between the parties was created on accounts and complainant asked his money back from the accused, on which accused informed him that this is a matter of account between the parties, however, the complainant misused the cheques and got them dishonoured without intimation to the accused. Learned counsel in support of his contention has referred the case law reported as Major (Retd) Javed Inayat Khan Kiyani vs. The State (2006 CLD 1314) wherein it has been held that before approaching investigation agency or launching a criminal prosecution, it was necessary to establish, prima facie, that cheque was issued dishonestly and with the intention to defraud. To know the intention of a drawer, a payee could give a notice to the drawee ater dishonour of cheque by the drawee and before approaching the police or the Court—word "dishonestly" employed in Section 489-F, PPc, required conscious and serious consideration. In the case of Muhammad Mukhtar vs. Sajjad Hussain and others ( PLJ 2004 Cr. C. (Lahore) 545), it has been held that no useful purpose is likely to be served if bail of accused is cancelled on any technical ground because after arrest they should be allowed bail on ground that case against accused are punishable only to extent of three years or with fine or with both- petition dismissed being devoid of any force. In the case of Major Anwarul Haq vs. The State ( PLD 2005 Lah. 607) it has been held that rationale behind the enactment of section 489-F PPC does not call for a mechanical action immediately when a cheque is returned by a banker, but is to be used only where, prima facie, the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan. Past conduct of parties is also to be seen. Business transactions, genuine disputes and contractual obligations may not constitute an intention for the offence. In Bashir Dawood and ors. Vs. Tanveer Ahmed and another (2000 P.Cr.L.J. 1230) it has been held that matter on the face of it was purely of civil nature. Civil liability could not be enforced by criminal prosecution.
I have heard the learned counsel for the parties and perused the case laws.
Admittedly the dispute relates to accounts. The parties are partners in loss and profit. The offence is punishable upto 3 years and does not fall within the prohibitory clause contained in Section 497 Cr.P.C.The grant of bail in such a case is a rule and refusal is an exception. It is yet to be seen as to whether the purpose of issuing the cheque was dishonesty or not and in this regard past conduct of parties is also to be seen. It is also settled principle that business transactions, genuine disputes and contractual obligations may not constitute an intention for the offence.
In view of what has been discussed above, I am inclined to hold that the trial Court has rightly granted bail to the accused. Therefore, I dismiss this Cr.Misc. application.
CHIEF JUSTICE