' Through this application under section 498 Cr.P.C. The petitioners seek bail before arrest in case F.I.R. No,523 dated 3-12-2001 under sections 406/420/460/471/419, P.P.0 . Registered at Police Station, Model Pown, Gujranwala.
2. Brief facts of the prosecution case narrated by the complainant are that Zaheer-ud-Din Babar and Sohail Abid petitioners received Rs,16 lac in the presence of the witnesses from him. They had to pay back the said amount on 31-5-2001 but they did not make the payment. The complainant alongwith Muhammad Ali and Yasir P. Ws. Went to see the petitioner and on 5-6-2001 Zaheer-ud- Din Babar and Sohail Abid, petitioners issued one cheque for 5-9-2001 to be drawn at Punjab Bank Trust Plaza Branch. The complainant states that cheque was dishonoured and it was not encashed due to insufficient funds in the accounts. It is stated by the complainant that he has been defrauded by the petitioners as they have issued bogus cheques in spite of the fact that there were no funds available in their accounts. It is further contended that the petitioners are professional cheaters who have already deceived Inayat Rasool. Ghulam Rasool and Sajjad Ahmad and also deprived them of huge amount by issuing such type of cheques in their favour, which could not be encashed. It is further stated in the F.I.R. That father of Sohail Abid had moved the application for the registration of a abduction case of Sohail Abid in Police Station Civil Line Gujranwala which was not registered and then writ petition was filed which was also dismissed. It is further contended that petitioners also started giving false applications at the Police Station Satellite Town against him. It is further stated that the accused are using these tactics in order to grab the money of the petitioner. Hence case was registered.
3. Learned counsel for the petitioners contends that civil dispute has been converted into criminal offence with mala fide intention by the complainant. It is further contended that the petitioners and complainant were jointly running a business and the complainant had taken away all the articles from the office including the cheque books and has manoeuvred and prepared these forged cheques wrongly in order to get the encashment of money instead of settling the accounts with the petitioners. It is further contended that the application was moved by the father of the petitioners for the registration of the case as Sohail Abid was abducted by the complainant and this case has been got registered as counter-blast to pressurize the petitioners thereby restraining them to take any legal action against them. It is further contended that even if for the sake of arguments issuance of cheque is admitted, that was not in lieu of any immediate benefit because if some post-dated cheque is issued the same at the most can be termed as promise to make the -payment and its non-encashment does not constitute any criminal offence.
4. Learned counsel for the complainant on the other hand has opposed this bail application by stating that as cheques have not been encashed thus petitioners are guilty of the offence and are not entitled to the extraordinary relief of bail before arrest hence their bail application may be dismissed. It is further contended that the huge amount is involved which is sufficient reason for the dismissal of the bail application of the petitioners. It is further contended that the petitioners are habitual in issuing such type of cheques as they had already issued cheques to 3 persons whose names have already been mentioned in the F.I.R. As witnesses and they have supported the prosecution case therefore in such circumstances the petitioners' bail application may be dismissed.
5. I have heard the learned counsel for the parties and also perused the record. The possibility of the registration of the case with mala fide intention by the complainant in the peculiar circumstances of this case cannot be A ruled out. The mala fides of the complainant are crystal clear from the bare perusal of the F.I.R, as the application earlier was moved by the father of Sohail Abid against the complainant for the abduction of Sohail Abid and the writ petition was filed before the registration of this case against the complainant. Hence the registration of this case can be a counter-blast to pressurize the petitioners to make the payment to the complainant. It is an admitted fact that the petitioners and complainant were running business jointly previously and some dispute of civil nature is pending between them. Without settling the accounts it may be an attempt for pressurizing the petitioner to make the payment and to effect the compromise with the complainant according to his wishes. There is no cavil to the proposition that criminal proceedings cannot be allowed to be used as a lever for settling the civil liability with the other party. It will amount to misuse of the authority of the police by the complainant in order to pressurize the alleged accused persons to settle in terms of the complainant. It is also well-settled by the superior Courts that the post-dated cheque is a compromise to make the payment which if not encashed does not constitute any criminal offence and at the most it can be used for the recovery of the amount as a proof to prove that some money is due from the issuer of the cheque. When the Courts are reluctant to get the civil dispute settled through criminal pressure, the complainant cannot be given a discriminatory treatment to use the police or the criminal machinery for the settlement of the accounts with the petitioners. In such circumstances I am of the. View that the petitioners have succeeded in making out a case for the grant of bail before arrest as they have denied the issuance of cheque and for the time being there is no report with the police in order to show that the cheques were issued by the petitioner as is alleged by the complainant. Only statement of the complainant is not sufficient to deprive the petitioners from their liberty by sending them to Jail; For the time being there is no sufficient material on record to connect the petitioners with the commission of the crime. Nothing is to be recovered from the petitioners as the cheques are already in possession of the complainant. The petitioners cannot be sent to Jail for the redressal of the personal grievance of the complainant hence ad-interim bail before arrest already granted by this Court vide order dated 20-12-2001 to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs,1,00,000 each with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, Gujranwala.
Pre-arrest .