1. ' TUFAIL H. EBRAHIM, J.---Applicant/accused Muhammad Atif son of Muhammad Miraaj is involved in case Crime No, 960 of 2010 registered at Police Station Preedy, Saddar Town, Karachi for the offence punishable under section 489-F, P.P.C. Was granted ad interim bail before arrest by this Court vide order dated 28-9-2010 and today the bail application is fixed for confirmation or otherwise.
2. ' Brief facts of the prosecution case according to F.I.R. Lodged on the basis of statement under section 154, Cr.P.C. Of complainant Wajahat Rauf Farooq son of Abdul Rauf on 24-8-2010, in which he has stated as under:-- "The owner of Quice Company namely. Muhammad Atif son of Meraaj has acquired Plot bearing No, 10-C, 8th Zamzama Commercial Lane, Phase-V, at a monthly rent of rupees two lac, in which he has opened a restaurant, for which he gave five cheques of Allied Bank of Pakistan, Saima Trade Tower Branch to my father. My father has given me authority letter for the purpose of registration of case. The detail of cheques is as under:--
(1) Cheque No, 8372580, dated 28-3-2010, which was bounced on 25-5-2010.
(2) Cheque No, 8372581, dated 28-4-2010, which was bounced on 25-5-2010.
(3) Cheque No, 8372582, dated 28-5-2010, which was bounced on 31-5-2010.
(4) Cheque No, 8372583, dated 28-6-2010 (date of bounce is not mentioned in the. F.I.R.)
(5) Cheque No, 8372584, dated 28-7-2010, which was bounced on 10-8-2010.
3. ' My claim is against Muhammad Atif son of Meraaj for giving me forged cheques. Action may be taken."
4. ' The applicant/accused has approached the Court of District and Sessions Judge, Karachi South and moved pre-arrest bail application. The learned IIIrd Additional Sessions Judge, Karachi South has wanted ad interim bail before arrest to the applicant/accused, but later on the interim order has been recalled and bail application of the applicant/ accused was recalled and the bail application was dismissed vide order dated 27-9-2010.
5. ' Learned counsel for the applicant/accused has contended that the alleged offence with which the applicant/accused is charged does not fall within the prohibitory clause of section 497, Cr.P.C.
6. Per learned counsel the said cheques were not issued by the applicant/accused for any obligatory or loan but the same have been given to the complainant's father as an security, as such there appears no dishonesty and section 489-F, P.P.C. Is not attracted. Learned counsel argued that complainant with mala fide intention has not informed the applicant/accused about dishonouring of cheque prior to lodging of F.I.R. Per learned counsel deeper appreciation of evidence is not required and only tentative assessme nt of evidence is required to be discussed at bail stage. Per; learned counsel the alleged cheques have not been issued by the applicant/accused, but the same were issued on behalf of Quice Food Industries Limited. Per learned counsel the said company was the tenant of the father of complainant and in terms of the tenancy agreement advanced post dated cheques were issued. Per learned counsel the company had paid the outstanding KESC bills on behalf of the landlord and also made major repairs and renovation of the demised rented premises on behalf of the landlord (father of the complainant).
7. ' Per learned counsel the future monthly rent was to be adjusted towards payment of outstanding KESC bills and major repairs and cheques were to be returned. Per learned counsel the F.I.R. Has been lodged with mala fide and ulterior reasons as and when the company requested the father of the complainant to settle the accounts and prior to which date the company had already requested its banker to stop payment in view of the dispute between the parties. Per learned counsel the cheques were not dishonoured due to any dishonesty and the concerned bank has issued such statement which could show that sufficient funds were available in the account of the company. Per learned counsel there is civil dispute between the parties and a case has been filed by the company against the father of the complainant for recovery of amount, damages and compensation. Lastly the learned counsel for the applicant/ accused prays that the interim bail before arrest granted earlier to the applicant/accused may be confirmed on the same terms and condition. In support of his contention he relied upon the following case-law:--
(1) PLD 2006 Lahore 752, (2) PLD 2005 Lahore 607, (3) 2000 PCr.LJ 1230, (4) 2005 PCr.LJ 1773, (5) 2010 PCr.LJ 875, (6) 2008 PCr,LJ 412, (7) 2007 YLR 1495 (Karachi), (8) 2008 MLD 159 (Lahore}, (9) PLD 2006 Lahore 481, (10) 2009 YLR 87 (Karachi), (11) PLD 1995 SC 34, (12)2006 SCMR 1292, (13) 2002 YLR 36 cLahore) and (14) 2000 PCr.LJ 1994.
8. ' Conversely learned counsel for the complainant has contended that admittedly a rent agreement has been executed between the parties and in terms thereof the applicant/accused was bound to pay rent. Per learned counsel the rent for the first month was paid through pay order. Per learned counsel as per the terms of the agreement, all the outstanding dues including the K.E.S.C. Bills had to be cleared by the applicant/ accused. Per learned counsel any alteration and modification was to be carried out in terms of clause-4 of the agreement with the permission of complainant, but the same was not taken by the applicant. Per learned counsel the cheques were issued specifically issued against the rent and cannot be adjusted at the whim of the applicant and the ingredients of section 489-F, P.P.C. Are fully attracted in this case. Per learned counsel prerequisites of the pre- arrest bail did not meet in the matter, therefore the applicant/accused is not entitled for the concession of bail. In support of his contention learned counsel relied upon the following case- law:--
(1) 2009 SCMR 174, (2) 2010 PCr.LJ 1321, (3) 2010 PCr.LJ 1099, (4) 2010 PCr.LJ 310, (5) 2010 PCr.LJ 504,
(6) 2008 YLR 760, (7) 2010 MLD 1422, (8) 2008 YLR 949 and (9) 2010 YLR 2179.
9. ' Learned D.P.-G. Has also vehemently opposed the confirmation of pre-arrest bail and has submitted that challan has been submitted in this case and there is sufficient material available against the applicant/ accused for committing the offence with which he is charged, as such he is not entitled for the relief of pre-arrest bail. In support of her contention she relied upon 2008 SCMR 966.
10. ' I have heard the arguments advanced by the learned counsel for the parties and have gone through the record and case-laws submitted by the learned counsel.
11. ' It is an admitted fact that the applicant/accused is a Director/ Executive of the company which had taken the premises of the complainant on rent and the relationship of landlord and tenant has not been denied by any of the party. It is also an admitted fact that five post dated cheques have been issued amounting to Rs,2,00,000 each in terms of and in terms of the agreement the said cheques which has been signed by the applicant/accused. On presentation of the cheques before the concerned bank the same were not encashed due to stop payment by the applicant/accused for which no notice was given to the complainant. Even the civil suit has been filed subsequent to lodging of F.I.R. The issuance of cheques against the fulfilment of obligation, presented in the bank when the rent became due, and its stop payment for the reasons that amount under cheques were adjusted against other heads in absence of any fresh agreement, prima facie also depict dishonest intention, which is one of the ingredients of section 489-F, P.P.C. It is well-settled principle of law that though section 489-F, P.P.C. Does not fall within the prohibitory clause of section 497 Cr.P.C. But it was not a rule of universal application, each case had to be seen through its facts and circumstances. Grant of bail, no doubt was a discretion granted to court, but the exercise of the same could not be arbitrary, fanciful or perverse.
12. ' No doubt civil proceedings are also initiated by the accused party against the complainant, but it is well-settled law that both the criminal and civil proceedings could run side by side and the accused, if guilty of an offence under section 489-F, P.P.C., could not be saved from being prosecuted merely because of pendency of civil proceedings. It is also settled law that deeper appreciation of material on record could not be done, while deciding the pre-arrest bail application. Prima facie, the complainant had no mala fide intention for false implication of accused in the case.
13. ' It is an admitted position that the cheques have been duly signed by the applicant/accused and the same were also delivered to the complainant by him. There is nothing on record to show that the possession of the entire premises was handed over to the complainant. The possession of the demised premises is still with the applicant/ accused without payment of rent, which shows the mala fide on the part of the accused. The challan has been submitted before the trial Court.
14. ' In the light of above circumstances, I am of the considered view that the applicant/accused is not entitled for the concession of bail. Resultantly the interim order dated 28-9-2010 is hereby recalled and the bail application of the applicant/accused is dismissed.
15. Pre-arrest .