This is an application for bail before arrest on behalf of petitioner in case FIR No, 147, dated 08.3.2017, offence under Section 489-F, PPC, registered with Police Station Chehlyak, District Multan.
2. Precisely stated the case of the prosecution as unfolded from the crime report is to the effect that Food Department, Government of Punjab entrusted wheat weighing 394.540 metric ton to petitioner, which was misappropriated by him; that in order to pay price of usurped wheat, the petitioner issued two cheques for amounts of R.s.98,61,850/- and 2,76,463/-, which on presentation before the concerned bank were dishonoured.
3. Learned counsel for the petitioner contends that petitioner is innocent and has falsely been implicated in. the instant case; that though the cheques were dishonoured in the year 2011, however, the instant case was registered six years thereafter; that admittedly, none of the two cheques bears date; that regarding the same subject matter, already a case stands registered vide FIR No, 650/2011, which is pending trial in the Court of Judicial Magistrate; that the facts and circumstances make the case of petitioner one of further inquiry, entitling him to pre-arrest bail.
4. The learned Law Officer assisted by the representative of Food Department strongly opposed the grant of bail and argued that petitioner is specifically nominated in FIR with the allegntion of having issued two cheques of heavy amount, which on presentation before the concerned bank were dishonoured; that petitioner has caused substantial loss to Food Department; that the guilt of petitioner is evident from cheques in question, which not only pertain to his account but also bear his signatures and that keeping in view the limited scope of pre-arrest bail, he is not entitled to such a relief
5. Arguments heard and record perused.
6. It evinces from the record that as per allegations, during flood of 2010, Food Department placed wheat consignment weighing around 394.540 metric ton in the safe custody of New Hafiz Floor Mills, Multan, the business concern of petitioner. During a tenure commencing from 14.03.2011 till 21.04.2011, petitioner deposited an amount equivalent to price of 40-metric ton of wheat in the Government treasury. However, as per accusation a shortfall of 306.140 metric ton of wheat was noticed during physical verification conducted by the officials of Food Department, which led to the registration of criminal case vide FIR No, 650/11 dated 18.11.2011 under Section 406, PPC at P.S. Muzaffarabad, Multan. It is important to mention here that the cheques in question were allegedly issued by petitioner immediately thereafter for the settlement of aforementioned shortfall.
In the above backdrop, it is noticed that as per canvassed facts, the cheques in question were issued by petitioner way back in 2011 towards the settlement of dispute, which was subject matter of a criminal case. It is noteworthy that as per admitted facts, the criminal case arising out of FIR referred above is still being prosecuted by Food Department in the Court of Judicial Magistrate concerned, where statements of as many as five prosecution witnesses have been recorded.
Likewise, it is noticed that none of the two cheques bear date of presentation before concerned bank. The non-mentioning of dates gives an indication that the cheques in question were not handed over to complainant for encashment. Rather were given in pursuance of an expected settlement, which was never arrived at.
7. It needs no mention that a cheque is regarded as a negotiable instrument and according to Section 84(1) of the Negotiable Instrument Act, 1881, it is to be produced before a bank for encashment within a reasonable time. The reasonable time, as referred in Section 84(1) (ibid) is to be counted from the date mentioned on the cheque in question. Likewise, the person, who issues a cheque is under obligation to make available requisite funds in his account on or around the proposed date of its encashment. For this "good reason, the 'concept of stale cheque was developed, according to which if a cheque is presented beyond period of six months of its due date, the bank and the account holder is not obliged to honour it and no legal proceedings can be initiated thereupon. Reliance in this respect can be made to the case of Shafaqat Hussain Hashmi vs. The State (2012 MLD 1551) as well as judgment of this Court delivered in case of Anwaar Masood Khan v. The State (PLJ 2017 Cr.C. (Lahore) 904).
8. In the above scenario, when the consideration in lieu of which the cheques in question were issued is already subjudice before a criminal Court and moreso when no date of their presentation is mentioned thereupon, the claim of petitioner for entitlement to pre-arrest bail appears to have some force.
9. Last but not the least, it is observed that even dishonor slip of one of the cheque is half torn and does not provide any indication about the reasons on the basis of which it was dishonoured.
Similarly, the delay of 51/2 years with which the instant case was registered is found not explained in any manner by the Food Department/ complainant. These circumstances, reasonably reflect the mala fide and ulterior motive of the complainant, which has persuaded this Court not to deprive the petitioner from his liberty by sending him behind bars on the sole pretext of limited scope of pre-arrest bail.
10.For what has been discussed above, instant petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner in terms of order of this Court dated 22.09.2017 is confirmed subject to furnishing fresh bail bonds in the sum of Rs. 5,00,000/- with two sureties each the like amount to the satisfaction of trial Court.