Muhammad Asghar-petitioner seeks pre-arrest bail in case FIR. No, 704, dated 12.11.2007 under Section 489-F PPC registered at Police Station Gulgasht, district Multan.
2. Another pre-arrest bail petition bearing Crl. Misc. No, 143-B/2008 in case FIR No, 705, dated 12.11.2007 under Section 489-F PPC also registered at Police Station Gulgasht, district Multan, has also been moved by the petitioner. Since both the bail petitions are co-related, therefore, are being disposed of by this single order.
3. Precisely facts of the above cases are that on 14.06.2007 Raja Ali Raza son of Raja Esa Khan Mehmood complainant sold Suzuki Car No, MLM-13 which had been leased by Prime Commercial Bank Limited, Abdali Road, Multan, to the petitioner for an amount of Rs, 3,00.000/-. An amount of Rs, 1,50,000/- was paid to the vendor in cash while for the remaining amount Cheque No, AA- 896281 A/C No, 1860-A of National Bank Branch% Bosan Road, Multan was given. A sale agreement of even date in this respect was also executed between the parties. The complainant deposited the cheque in his account in National Bank, Gulgasht Branch, Multan, for encashment on 13.09.2007, but the same was returned on 15.09.2007 for want of sufficient amount in petitioner's account.
Thereupon, complainant asked the petitioner for payment of the outstanding amount but latter refused to pay back the same. The cheque was again sent to the concerned. Bank for encashment on 18.09.2007 but the same was bounced. Therefore, the complainant got registered the case FIR No, 704/07.
4. On the same day i,e, 12.11.2007 case FIR No, 705/07 was got registered by Raja Ali Raza also alleging therein that on 14.6.2007, he advanced loan of Rs, 2,72,000/- to the petitioner repayable on 20.09.2007. In lieu thereof, the petitioner gave a post-dated Cheque No, AA-896282 of his A/C No, 1860-4 in National Bank, Bosan Road, Multan. On 20.09.2007 the cheque was presented for encashment but the same was dishonoured. According to Raja Ali Raza, a separate pronote in respect of the loan amount was also executed by the petitioner in his favour.
5. Learned counsel for the petitioner contends that the petitioner is innocent and has been falsely implicated in the aforesaid cases with malafide. As per sale agreement dated 14.06.2007 executed between him and Raja Ali Raza, the petitioner was liable to pay the installments to the Bank after 31.05.2007, but Raja Ali Raza had already defaulted to pay the installments due to which the vehicle was impounded by the bank under intimation to the actual lessee/owner of the vehicle Sohail Aslam vide their letter 06.07.2007. Since vehicle was taken into possession by the Prime Commercial Bank Limited, therefore, the petitioner directed his bank to stop the payment of impugned cheques. At the time of issuance of cheques, the petitioner was not having any malafide or ulterior motive to defraud the complainant, rather the latter committed fraud with him by concealment of fact that the vehicle was owned by Sohail Aslam. Learned counsel has further contended that prior to registration of case, on 27.08.2007 the petitioner filed a suit for declaration against Raja Ali Raza also in which learned trial Court issued an injunctive order that defendant shall not use the disputed cheques against the petitioner. Another application under Section 22-A Cr.P.C. for registration of case against Raja Ali Raza and his father was also filed, upon which case FIR No, 352 dated 06.10:2007 under Sections 420/506/34 PPC has been registered against them.
Cases have been got registered by the complainants as a counterblast to the case registered against them. Further contended that Cheque No, AA-896282 was issued to Raja Ali Raza as a security for the payment of installments of vehicle to the concerned bank and any loan was not advanced. Learned counsel has next contended that an installment of Rs, 15,925/- was paid by the petitioner in July, 2007 and the original receipt was handed over to the complainant for getting the vehicle released, but it has not been handed over to the petitioner and is being used by the complainant himself. Lastly, it has been submitted by learned counsel that after conclusion of investigation, challan has been submitted in Court and petitioner is no more required for further investigation.
6. On the other hand, learned Deputy Prosecutor General for the State and learned counsel for the complainant have vehemently opposed the bail application. They have contended that the petitioner civil suit against the complainants with malafide to avoid payment of amount and that installment of July, 2007 has not been paid by the petitioner and it has been paid by the complainants themselves.
7. There is no dispute regarding issuance of cheques to the complainants by the petitioner. The real controversy in this case requiring determination is as to whether the same were issued by the petitioner dishonestly to defraud the complainants or with bona fide intention. A certificate of Manager Operation, National Bank of Pakistan, Bosan Road Branch, Multan has been placed on the file according to which petitioner's request dated 16.08.2007 to stop payment has been marked on the disputed cheques. In view of this certificate, the cheques have not been dishonoured due to lack of sufficient amount in the account of petitioner rather encashment has been refused under his own .. instructions. As per sale agreement dated 14.06.2007 executed between Raja Ali Raza and petitioner, the latter was liable to pay the installments after 31.05.2007 and was not responsible for any prior default. According to letter of Prime Commercial Bank limited addressed to Sohail Aslam the original lessee/owner, the vehicle was taken into possession by the bank on 06.0.7.2007 on account of non-payment of monthly installments. It clearly shows that the complainants had already defaulted to pay monthly installments to bank, but they concealed this fact to the petitioner. A suit for declaration was filed by the petitioner against Raja Ali Raza on 27.08.2007 wherein an injunctive order was passed that the defendant shall not use cheques against the petitioner till the next date of hearing. That suit is admittedly pending adjudication before learned Civil Judge, Multan. On an application under Section 22-A Cr.P.C. moved by the petitioner, case FIR No, 352 dated 06.10.2007 against both the complainants and one Muhammad Asghar has also been registered in Police Station Alpa, district Multan, under Sections 420/506/34 PPC with regard to the dispute of vehicle between the parties. All these facts and circumstances lead to the irresistible conclusion that the complainants have got registered both the cases against the petitioner with malafide and as a counterblast to the case registered against them. The petitioner while issuing the cheques was not having any dishonest intention to deceive or defraud the complainants which is the main ingredient of offence under Section 489-F PPC. In this respect, reliance may be made to the case titled 'Maj. (Rtd.) Javed Inayat Khan Kiyani versus The State" (PLD 2006 Lahore 752), wherein it has been held that object of Section 489-F PPC was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss.
Therefore, before approaching the investigating agency or launching a criminal prosecution, it is necessary to establish, prima facie, that cheque was issued dishonest and with the intention to defraud. In case titled 'Major Anwar-ul-Haq versus The State" (PLD 2005 Lahore 607) also it has been observed 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 dishonest pure and simple in the matter of payment of loan.
8. As mentioned above, the matter between the parties is purely of civil nature and is already sub- judice before the competent forum. The petitioner did not issue the cheques dishonestly to defraud the complainants and cause them wrongful loss. He got the payment of cheques stopped due to subsequent impounding of the vehicle by the bank authorities on the basis of default in payment of installments. Investigation of the case has been completed and report under Section 173, Cr.P.C. submitted in the concerned Court. Therefore, no useful purpose is going to be served by committing the petitioner to the police custody. Hence, both the bail petitions are allowed, ad- interim pre-arrest bail already granted to the petitioner is confirmed, subject to his furnishing fresh bail bonds in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of learned trial Court.