ABDUS SATTAR ASGHAR, J .---Muhammad Ashraf petitioner/accused in case FIR No.13/2014, dated 3-1-2014 in the offence under section 489-F of the Pakistan Penal Code, 1860, Police Station City B- Division Sheikhupura has sought pre-arrest bail on the ground that he is innocent and has been falsely implicated in the case with malice.
2. As per FIR lodged on 3-1-2014, the complainant alleged that he had business deal with the petitioner/accused; that about three years back the petitioner borrowed Rs.8 million from the complainant to meet his business requirement and promised to return the same after a few days but later on declined and after a long time issued cheque No.A2395935 pertaining to Account No.PLS-184 on 25-2-2011 to be drawn on the Punjab Provincial Cooperative Bank Limited, Civil Lines Sheikhupura; that the impugned cheque was presented to the said Bank on 11-11-2013 wherefrom it was bounced due to insufficient funds; that the petitioner has played a fraud upon the complainant by issuing a bogus cheque.
3. It is argued by the learned counsel for the petitioner that the petitioner is falsely implicated with malice; that the alleged cheque bearing date of issuance as 25-2-2011 was a stale cheque and that according to the Bank's practice complainant was not competent to present it after lapse of six months; that the complainant presented the impugned cheque after two years and nine months with mala fide intention and after getting it bounced with the connivance of the bank officials got registered this case to harass and humiliate the petitioner with ulterior motive; that the offence under section 489-F of the Pakistan Penal Code, 1860 is not made out against the petitioner; that no recovery is pending against the petitioner; that the prosecution has no reliable incriminating material against the petitioner therefore he is entitled to the concession of pre-arrest bail.
4. It is resisted by the learned Deputy Prosecutor-General for the State assisted by the learned counsel for the complainant with the contentions that the petitioner has not denied the issuance of the impugned cheque in favour of the complainant; that the delay in presentation of the cheque to the bank concerned occurred as the petitioner has been pressing upon the complainant not to get the cheque encashed with a promise to return the amount; that the prosecution has prima facie incriminating material against the petitioner, that the plea of malice is not substantiated through any speck of material therefore the petitioner is not entitled to the concession of pre-arrest bail.
5. Arguments heard. Record perused.
6. There is no cavil to the proposition that the impugned cheque is a negotiable instrument which was presented to the bank after lapse of about 30 months. Section 84 of the Negotiable Instruments Act, 1881 A requires that a cheque is to be presented for payment within a reasonable time of its issue. Subsection (2) of section 84 of the Act ibid contemplates that in determining what is reasonable time regard shall be had to the nature of the instrument, usage of trade and of bankers and the facts of a particular case. A cheque is overdue and ordinarily called 'stale' when it appears on the face of it to have not been presented within reasonable length of time. In Pakistan there is a practice that most of the bankers return the cheque presented six months after the date of its issuance with an objection 'out of date' or 'return to the drawer for confirmation before payment'. In this case, the impugned cheque allegedly was issued on 25-2-2011 but no cogent reason is assigned for not presenting the same to the bank for a long period of 30 months. It is evident on the record that during the course of investigation Manager, Punjab Provincial Cooperative Bank Limited, Sheikhupura vide letter dated 29-1-2014 addressed to the SHO concerned has categorically mentioned that the impugned cheque had its validity for six months from, the date written on the cheque and as the date for the cheque had lapsed the same had gone stale. Needless to say that dishonest intention in issuing a cheque is sine qua non to attract the offence under section 489-F, P.P.C. Which is yet to be established after having, recourse to evidence. No date, time or place of alleged payment of Rs.8 million by the complainant to the petitioner is mentioned in the FIR. Learned counsel for the complainant during the course of arguments has frankly admitted that the complainant has not yet filed any suit against the petitioner for recovery of the disputed amount. Admittedly the impugned cheque is in possession of the complainant, therefore no recovery is pending against the petitioner. The offence under section 489-F, P.P.C. Does not fall within the prohibitory clause of section 497 of the Criminal Procedure Code, 1898. In the circumstances of this case, plea of malice raised by the petitioner cannot be discarded outright. Reliance is made upon Mian Allah Ditta v. The State and others (2013 SCMR 51). Needless to say that object of pre-arrest bail is to save innocent persons from humiliation, harassm ent and incarceration on the basis of false implication.
7. For the above reasons, this petition is accepted and ad interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.