' ATIR MAHMOOD, J. --- Through this petition under Section 498, Cr.P.C. The petitioner seeks his pre- arrest bail in case F.I.R. No, 140/2013, dated 20.02.2013, lodged with Police Station Ghalib Market Lahore for offence under Section 489-F, PPC.
2. As per contents of the FIR, the allegation has been levelled against the petitioner that the complainant invested a sum of Rs, 29,00,000/- with the petitioner in the business of property and for re-payment of the said amount, an agreement dated 15.06.2011 was executed between the parties. In accordance with the said agreement, the payment of Rs, 4,00,000/- vide cheques No, 5952041 and 5952041 was made by the petitioner to the complainant. Thereafter cheque No, 6952043 issued by the petitioner for an amount of Rs, 2,00,000/-, dated 10.12.2012 was bounced.
3. Learned counsel for the petitioner submitted that there was no business transaction between the petitioner and the complainant and in fact the alleged amount, which is being claimed by the complainant, was regarding a bet upon a match of IPL; that the petitioner lost the bet; that in the investigation of the police, the version of the complainant that he made any investment in the business of property could not be established, that at the most, the cheques issued by the petitioner can only be considered as a security/guarantee; that the disputed cheque which is subject-matter of the present case was not dishonoured on account of deficiency of amount in the bank rather it was returned as the bank account of the petitioner has become dormant for not using for more than six months; that the complainant before presenting the cheque never issued any notice to the petitioner nor asked for the payment of said amount and straightaway presented the cheque before the bank; that the investigation has been completed and nothing is to be recovered from the petitioner as the disputed cheque is already in possession of the police. He lastly submitted that matter requires further inquiry and prayed for confirmation of ad-interim pre- arrest bail already granted to the petitioner.
4. On the other hand, learned counsel for the complainant has vehemently opposed this petition and submitted that the issuance of cheque has been admitted by the petitioner and he has defrauded the complainant by issuance of cheque knowingly that the amount was not available in the account of the petitioner. He has further submitted that the petitioner is not entitled to any discretionary relief as he has admitted that, he gambled on IPL matches and on account of this admission, he is liable to be proceeded against under the relevant provisions of Gambling Act, 1978. The learned Deputy Prosecutor General has adopted the arguments of the learned counsel for the complainant. It has been stated by the learned Law Officer that during the course of investigation version of the complainant regarding the business transaction of property was not proved, however, it was found that the disputed cheque was given by the petitioner to the complainant dishonestly, therefore, provisions of Section 489-F, PPC are attracted.
5. I have heard the arguments of learned counsel for the parties and also gone through the record.
6. From the perusal of the F.I.R. And arbitration decision arrived at between the parties, prima facie, the complainant has not been able to establish that the amount of Rs, 29,14,000/- was paid by him to the petitioner for the business of property. In the said arbitration decision dated 15.6.2011 it has nowhere been mentioned that the dispute between the parties was regarding any property matter.
It is written therein that there was a dispute of Rs, 29,14,000/-. From clause 2 of the arbitration decision, it is crystal clear that all the cheques, 15 in number, were returnable to the petitioner on payment of Rs, 2.00,000/- each. As per clause 4 of the arbitration decision, the complainant was entitled to proceed against the petitioner for the recovery of monthly instalment along with costs from the petitioner. In this arbitration decision it is nowhere mentioned that any criminal proceedings can be initiated on account of non-payment of the cheque amount. During the course of arguments, learned counsel for the complainant has admitted that there was bet between the parties, on account of which the amount in dispute is being claimed by the complainant. Even otherwise, there is nothing on record to show that the complainant has in fact paid any amount to the petitioner.
7. In view of the above discussion, I am of the considered opinion that the disputed cheque which was presented for encashment before the bank was given as a guarantee/security which was returnable to the petitioner upon the payment of Rs, 2,00,000/- to the complainant. Learned counsel for the complainant has not been able to controvert the submission made by learned counsel for the petitioner that before deposit of the cheque in the bank for its encashment, the petitioner was not served with any sort of notice for the payment of said amount. The offence does not fall within the prohibitory clause of Section 497, Cr.P.C. Nothing is to be recovered from the petitioner by the police. Sending the petitioner behind the bars at this stage will amount to imprisonment before conviction. On account of above-narrated facts, the petitioner has been able to make out a case of pre-arrest bail which is accordingly allowed. The ad-interim pre-arrest bail already granted to the petitioner/accused is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs, 200,000/-(Rupees two lac only) with one surety in the like amount to the satisfaction of learned Trial Court. It is made clear that the observations made here-in-above shall not prejudice the merits of the case which will be decided on its own merits in accordance with law, by the Trial Court.