2011 PLP 1465 (MLD)

TUFAIL H. EBRAHIM, J.

Being aggrieved by the order dated 24-5-2010 of the III-Additional Sessions Judge, Karachi (South) in Criminal Bail Application No. 469 of 2010, dismissing the bail application, the applicant/accused has preferred the instant bail application. Brief facts for the disposal of the bail application are that a cheque, bearing No.2866002 dated 12-5-2009 drawn on Habib Bank Ltd., Defence Housing Society Branch, Karachi, amounting to Rs.1,706,173, was issued by the applicant and Syed Mujtaba Ghous with mala fide intention in respect of some business transaction with the complainant and the said cheque upon presentation was dishonoured. Mirza Adil Mustafa Baig, learned counsel for the applicant, has argued that there is delay in lodging the F.I.R. by four months. Per learned counsel the cheque was issued for the supply of 72 gel batteries of Japanese Yuasa brand, but the complainant had supplied defective Chinese batteries, and, therefore, the cheque was withheld and there is dispute over the quality of the goods supplied and the dispute is of civil nature and the complainant has falsely lodged the F.I.R. for mala fide and ulterior reasons. Per learned counsel the case is based upon documentary evidence, which are in possession of the prosecution and, therefore, there is no chance that the applicant would tamper the said documents. Per learned counsel the applicant is an old person, aged about 72 years and has undergone heart surgery and is suffering from diabetes. Mr. Imtiaz Ali Jalbani, learned Assistant Prosecutor-General, Sindh, for the State, submits that the signatures on the cheque have' not been denied. It is also an admitted position that the cheque was dishonoured by the bank on presentation. The cheque was issued for fulfillment of an obligation and nothing is available to show that the applicant had made arrangement with his bank to ensure that the cheque would be dishonoured or that the bank was at fault in not honouring the cheque. I have heard Mirza Adil Mustafa Baig, learned counsel for the applicant, and Mr. Imtiaz Ali Jalbani, Assistant Prosecutor-General, Sindh, for the State and have gone through the record. It is an admitted position that the cheque was issued in favour of the complainant in respect of some business transaction by the applicant along with co-director on behalf of Energy Renewable (Pvt.) Ltd. There is nothing on record to show that any legal action was taken, by the applicant against the complainant or the goods were returned to the complainant or it was agreed that cheque would not be presented. Admittedly the cheque was issued for certain obligation and the said cheque has been dishonoured by the bank on presentation. The said cheque on presentation has been dishonoured by the bank, prima facie implying that the applicant had issued the said cheque with dishonest intention. Delay in presentation of cheque would not imply mala fide or malice on the part of the complainant to falsely implicate the applicant in the F.I.R. No medical certificate is available on record to support the contentions of the learned counsel for the applicant that the applicant had undergone open heart surgery or is suffering from acute diabetes. Prima facie the applicant has failed to show that the cheque was not dishonestly issued for payment of any obligation or the applicant is seriously ill and such illness could not be treated in custody or his arrest would be detrimental to his life. The offence under section 489-F, P.P.C. provides maximum punishment of three years irrespective of the amount of dishonoured cheque, hence the offence is not covered by the prohibitory clause of section 497, Cr.P.C., but as held time and again by our superior judiciary that if any offence, although not falling under the prohibitory clause of section 497, Cr.P.C. would 'simply not justify the grant of extraordinary relief of bail in cases relating to pre-arrest bail, as deeper appreciation of material available on record could not be done while deciding pre-arrest bail application. It is my tentative view that a prima facie case has been made out against the applicant for the commission of the alleged offence. The applicant has also failed to make out any case for further inquiry within the meaning of section 497(2), Cr.P.C. The interim pre-arrest bail granted vide earlier order dated 26-5-2010 is hereby recalled and this criminal bail application stands dismissed. Needless to mention that the above observations are only tentative in nature and should not influence the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial. I further direct the trial Court to decide this case expeditiously and preferably within a period of two months. N.H.Q./W-5/K Pre-arrest bail refused.