The facts of the instant case suggest that Malik Khizar Hayat (petitioner) dealt in electronics in the name and style, "Khizar Electronics" who issued a cheque of Rs, 14,00,000/- to repay the amount of credit to Syed Atta Ullah Shah, the complainant who presented it for encashment before the bank concerned but it was returned unpaid for sufficiency of funds. The complainant has further alleged in the FIR that Khizar Hayat (petitioner) did not defray his liability despite efforts of respectable of the area and that of the senior PAC Kamra authorities as he put them off with a variety of excuses.
2. It has been contended by learned counsel for the petitioner that the complainant had joined the business of the petitioner on profit and loss sharing basis in year 2009 and soon both of them developed cordial intimacy; the petitioner in the wake of business activities, handed down three cheques to the complainant, one being the cheque in question as security; the godowns of the petitioner, due to incessant rains in the month of July were submerged in knee-deep water which damaged electronic goods worth millions of rupees and the petitioner had lodged claim with the Electronic Company, seeking compensation for the destroyed goods and he is determined to indemnify/compensate the complainant in entirety, on satisfaction of the claim; the petitioner filed a civil suit against the complainant on 27.12.2010 for rendition of accounts, earlier than registration of the instant FIR, also mentioning about the cheque in question, in Para No, 3 of the plaint, the petitioner had not issued any cheque to the complainant with dishonest intention knowingly that it would be bounced by the bank on presentation, for encashment; the petitioner has not misappropriated any funds of the complainant; the offence alleged against the petitioner does not catch the prohibition of Section 497 Cr.P.C.; the basic ingredients of Section 489-F P.P.0 are non- existent and the petitioner's case is open to further inquiry within the scope of Section 497 Cr.P.C.
Relies upon Muhammad Yahya Vs. State etc. (PLJ 2011 SC 175).
3. On the other hand the complainant in person has vehemently opposed grant of bail to the petitioner with the contention that he had joined the business of the petitioner in year 2009 only because of his oily tongue and he soon learnt that he was an employee of PAC who could not supply electronic goods to PAC or other Government departments due to said infirmity; the petitioner had been rendered financial assistance by him only on account of friendship and that he had been defrauded by the accused through three cheques, including the cheque in issue; the petitioner <stands involved in another case Of identical nature bearing FIR No, 553/10 dated 31.12.2010 u/S. 489-F P.P.C. registered at Police Station City Attock and he is a habitual offender; all the efforts made by him for recovery of the swindled amount even through Jirga had fallen apart only due to non-cooperation of the petitioner. Lastly submits that the petitioner may not be admitted to bail merely on the fact that the offence does not fall under the prohibitory clause of Section 497 Cr.P.C. He has relied upon an unreported case titled Rashid Farooq Vs. The State etc. bearing Crl. Misc. No, 1668-B2010 decided by this Court on 12.10.2010.
4. Learned Deputy Prosecutor General endorses the submissions made by the complainant and adds that the rudiments of Section 489-F P.P.0 are fully attracted and the petitioner has committed an offence which is non-bailable.
5. After having heard learned counsel for the parties and perused the record, I find that it is a fit case for grant of bail as the complainant frankly admits to have joined the business of the accused-petitioner as a partner on profit and loss sharing basis and in wake of events, the petitioner with a view to satisfy the complainant had delivered the cheque in question, of course, not With a criminal intent that it would be bounced on presentation for encashment, by the bank due to insufficient funds. The complainant had got registered another case against the petitioner on the same day when the instant FIR was got lodged by him. It cannot be said by any stretch of imagination that the petitioner had repeated the offence. A suit for rendition of accounts with permanent injunction had been filed by the petitioner on. 27.12.2010 against the complainant which entails the fact that Atta Ullah Shah, (complainant) became a business partner bf Malik Khizar Hayat (petitioner) on profit/loss sharing plan and Para No, 3 to 8 of the plaint are relevant in this regard.
6. Learned counsel for the petitioner has categorically submitted that the petitioner with a clear conscience plans to indemnify the claim of the complainant and would do so without second thought, once his claim for Rs, 14,92,900/- would be awarded by the Haier Pakistan Private Limited, the manufactures of the electronic goods, the petitioner dealt in.
7. The complainant has also submitted about his financial curtailments and the learned counsel for the petitioner appears to have been moved by it and he has pledged on behalf of the petitioner, that the complainant shalt be compensated by the petitioner to his satisfaction in due course of time.
8. An offence under Section 489-F P.P.C shall be deemed to have been committed when a cheque is issued with dishonest intention by the offender towards payment of loan or fulfillment of a legal obligation, knowingly that it would be bounced by the bank on presentation for encashment. The business ties between the parties stand admitted and the cheque in question appears to have been delivered to the complainant by the petitioner for the reason, other than the one, mentioned in the definition of the above said penal provision of law. Till the satisfaction of the basic ingredients noted above, the petitioner can hardly be deemed to have committed an offence, alleged against him. The pendency of the civil suit is a strong circumstance going at this stage, to the favour of the petitioner. I am fortified in my view, while I base reliance upon Muhammad Yahya's case, PLJ 2011 SC 175. The relevant head note(A) is reproduced as under: "----S. 497--Pakistan Penal Code, (XLV of 1860), S.489-F--Bail, grant of--Dishonoured of cheque-- Question for encashment of cheque--Injunctive order with regard to encashment of cheque was issued by Civil Court--Validity--Subject matter of instant petition--Matter of a pending suit which was filed before the registration of the FIR and even presentation of cheque in question for encashment--A Civil Court in the pending civil suit had also issued an injunctive order with regard to encashment of the cheque--Accused was behind the bars for the last six months and the trial had yet to commence-Bail was granted."
10.The offence alleged against the petitioner is punishable with imprisonment of three years and does not fall within the mischief of prohibition of Section 497 Cr.P.C. The challan stands submitted before the learned trial Court and the petitioner is no more required for the purpose of further investigation. It is not the requirement of law that an accused who has otherwise made out a case for bail, be left to languish in jail for an indefinite period of time, only to satisfy the whimsical desires of the complainant. The bail in such like offences is a rule and rejection thereof, an exception, which must not be withheld as a matter of punishment.
11.Resultantly, the instant petition is allowed and the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.