1. ' NISAR MUHAMMAD SHAIKH, J.---Applicant Naveed Maqsood seeks post-arrest bail in Crime No,76 of 2011, registered at Police Station SITE Hyderabad, under section 489-F read with section 506(2)/34, P.P.C. His similar application was dismissed earlier by learned VIth Additional Sessions Judge Hyderabad, vide his order dated 22-9-2011.
2. ' As per the F.I.R. Lodged on 29-8-2011 by complainant Saleem Ahmed, he and the applicant were dealing with the business of selling and purchasing the cars, for which the complainant had given him Rs,29,60,000 but he neither supplied the vehicles nor returned the said amount therefore, on the demands of complainant, the applicant issued three months' post dated Cheque No,SA1260962 (dated 6-4-2011) for Rs,29,60,000 which was then presented by the complainant (on 13-4-2011) at Al-Falah Bank, Saddar Branch Hyderabad, but the same was bounced on the same day. It is alleged in the F.I.R. That thereafter the complainant tried to contact the applicant who together with two unknown persons, came on 23-8-2011 and after beating the brother of the complainant, threatened the complainant to return his cheque back within 24 hours else he will commit their murder. On such F.I.R. The applicant was arrested on 5-9-2011 and on completion of investigation, he was challaned to face trial in the above case.
3. ' Learned counsel for the applicant, relying upon the cases reported as (1) 2009 SCM R 1210 (2) 2011 SCM R 710 (3) 2002 SCM R 1797 (4) 2009 SCM R 1488 (5) 2011 SCM R 1319 (6) 2009 PCr.LJ 497 (7) 2009 PCr.LJ 1418 (8) 2011 SCM R 161 (9) 2009 SCM R 1488 and (10) 2000 PCr.LJ 497, contended that the cheque in question was never issued by the applicant and actually such account was opened in 2005 and such account remained dormant therefore, there was no question of issuance of the cheque in question which was manipulated by the complainant through his brother Shahzad Jameel who was shown to be the nominee of the applicant in connection with such account. He further .Submitted that the offence is not covered by the prohibitory clause of section 497(1), Cr. P.
4. C. Therefore the grant of bail in such case is a rule. He further submitted that the memo. Issued by the concerned bank is in respect of another cheque which is not concerned to, the cheque in question. He therefore, contended that on account of such factual controversy this is a fit case of further inquiry and as such the applicant is entitled for the concession of bail.
5. ' On the other hand, the contention of learned counsel for the complainant is that the applicant has been cheating so many persons including the complainant who has already lodged another F.I.R.
6. No, 95 of 2011 on 22-4-2011 under section 489-F,. P.P.C. Against the applicant who had also issued another Cheque No,1260963 for Rs,12,30,000 which was dishonoured. But meanwhile, he filed an Insolvency Petition against 18 persons including the complainant showing his inability to repay the due amount. Learned counsel further submits that another F.I.R. No,57 of 2011 was also lodged by another complainant namely Toqeer Ahmed in respect of the similar- offence that was committed by the present applicant. Learned counsel also produced the photocopies of the some cheques issued to some other persons namely Aijaz Ahmed and Irfan Ahmed which were also bounced by the concerned banks. Learned counsel for the complainant submits that the applicant is not entitled for the concession of bail on account of his such conduct being a habitual offender. In this connection she also placed reliance on the case reported as 2009 SCM R 174.
7. ' I have considered the submissions and perused the relevant record as well as the case-law as relied upon by learned counsel for the parties. This matter was heard on 9-12-2011 but there appeared some hope of settlement between the parties, therefore, the same was adjourned today for orders. However, Waseem Sajjad the brother of the applicant, who was present before this Court on 9-12-2011, is not in attendance indicating that there is no chance of compromise.
8. It is an admitted position that the parties had business dealings therefore the defence plea as set- up by the applicant needs to be considered after due trial of the case. Apparently, there are two other F.I.Rs, which have already been registered against the present applicant in respect of the similar nature of offence and two other cheques, allegedly issued by applicant to other persons, are also shown to have been dishonoured. All this goes to show that the applicant has been issuing the cheques to different persons and the same are being bounced. In this connection, the copy of the plaint of Insolvency Petition No,5 of 2011 produced by learned counsel for the complainant, shows that there' are 18 persons including the present complainant whom the applicant is liable to pay certain amount. It is interesting to note that this Insolvency Petition was filed by the applicant before the District Court Hyderabad on 5-4-2011, one day prior to the date of the cheque in question i,e, 6-4-2011. The contention of applicant that he never issued the cheque in question, is also not supported by the Expert whose opinion/report dated 26-102011 also goes to support the version of complainant.
9. ' In view of the above position, the case of SHAMEEL AHMED v. THE STATE (2009 SCM R. 174) as relied upon by learned counsel for the complainant, seems to be identical one as it was observed in such case that the grant of bail in a case not falling within the prohibitory clause of section 497(1), Cr.P.C.
10. Was not a rule of universal application and each case had to be dealt with in its own facts and circumstances. It was further observed in such case that if an order granting the bail had been obtained by the accused after suppressing the details of vital importance, the same could be cancelled by the Court and since the accused was involved in three previous cases of similar kind Therefore, he was prima facie found to be habitual offender of issuing cheques and defrauding the people. In such circumstances, the apex Court held that the discretion exercised by the Courts below did not warrant any interference.
11. ' On the other hand, the learned counsel for the applicant also relied upon various authorities. In the case of MUHAMMAD AKRAM v. THE STATE (2009 PCr.LJ 497) only the amount of Rs,4,90,000 was involved and the accused was behind the bars for last more than 6 months. Whereas in the case of ZAFAR IQBAL v. MUHAMMAD ANWAR and others (2009 SCM R 1488) the complainant had no business deal with the accused who had also returned huge portion of the amount received by him from the complainant and he had also remained in custody for a period of about 6 months therefore he was enlarged on bail as the total amount of cheque involved in such case was Rs,4,00,000 only.
12. While in case of KASHIF KHAN v. THE STATE (2009 PCr.LJ 1418) the accused was granted bail who was behind the bars for the last about 14 months and not a single witness was examined till such date.
13. The remaining authorities as cited by learned counsel for the applicant, are not relating to the case falling under relevant section 489-F, P.P.C.
14. It is clear from the above that the conduct of the applicant has not been such to entitle him for a discretionary relief in a case which prima facie connects him for the dishonestly issuance of a cheque of a huge amount. In such circumstances, the applicant does not seem to be entitled for the concession of bail at this stage and therefore, this bail application is hereby dismissed.