P L D 2020 Lahore 97 (PLP)

ANWAARUL HAQ PANNUN, J.

The petitioner seeks confirmation of already extended concession by way of his admission to ad-interim pre-arrest bail vide order dated 08.05.2019 in case FIR No.184 dated 02.04.2019, offence under Section 489-F, P.P.C., registered at Police Station Kot Samaba, District Rahimyar Khan. The learned Addl. Sessions Judge, Rahimyar Khan, dismissed his application, while recalling his ad-interim bail, vide order dated 04.05.2019.

2. Precisely the allegation against the petitioner is that he dishonestly issued a cheque No.7675385, A/C No. 06444573861002907 of MCB Main Branch Sadiqabad, amounting to Rs.3,25,000/- to the complainant for fulfillment of his obligation, when presented before the concerned bank, stood dishonoured.

3. Learned counsel for the petitioner while submitting an affidavit duly sworn in, by the petitioner, Mark "A", states that the petitioner is ready to pay the amount of cheque till 30.09.2019 and in case of his failure in honouring his commitment, he will not be entitled to enjoy the fruit of bail. The factum of compromise reflecting through the affidavit Mark "A" has been conceded by the complainant.

4. Learned Deputy Prosecutor General assisted by learned counsel for the complainant does not oppose the above arrangement inter-se the parties.

5. At the very outset, it is observed that a civil remedy for recovery of amount of cheque, a negotiable instrument, by way of a summary suit under Order XXXVII C.P.C. is available to the payee against the person issuing cheque with mala fide, without making arrangement for its encashment, on its presentation before the financial institution.

6. There is hardly any cavil in saying that every religion, society and civilization throughout the world including past and present, despite varying social taboos, irrespective of differences in, set of the believes of their followers, have some common traits furnishing basis for creating a common connection amongst humanity. I cater no doubt in my mind that in every nook and corner of the world, the followers of every set of belief do not appreciate the breach of commitment and disapprove dishonesty. Regarding promise/commitment, in Verse No.34 of Surah Banni Israel, Chapter No.15 of the Holy Quran, Almighty Allah has commanded that: - The Holy Prophet Hazrat Muhammad (Peace Be Upon Him) said that:- I observe with pleasure that while legislating Section 489-F P.P.C., the above commands stand encapsulated into Section 489-F P.P.C., conveyed through the above quoted verse and Hadith.

7. Owing to variety of scientific inventions, especially in the field of information technology, without compromising their sovereignty, the nation states have become global villages. It has given phenomenonal rise to even inter-continental trade and fiduciary relation. The ongoing trade and commerce activities amongst various nations necessitated the adoption of swift mode of payment for materializing the transactions. The on-line banking is one of the mode for transfer and payment of money currently in vogue, for running the business all over the world. Pakistan unfortunately being one of the under developed countries amongst the comity of nations has yet not been able to adopt computerized culture and other modes relating to advance technology. However, with the increase in the financial transactions within the country, being safe enormously the transactions are now being made through financial institutions. In absence of any efficacious and swift remedy for bringing the person to book, issuing cheque with dishonest intention, the legislature while enacting the provision of Section 489-F, P.P.C., rose to the occasion, made person liable to penalty.

8. The offence has been made compoundable under the law. For ready reference, the provision of section 345 Cr.P.C is reproduced as under:-

345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table: Offence Sections of Penal Code applicable Persons by whom offence may be compounded Dishonestly issuing a cheque for repayment of loan of fulfillment of an obligation 489F The person in whose favour cheque issued The offence under Section 489-F, P.P.C. is cognizable by the police, therefore, person accused of committing such offence, is either arrested by police or apprehending his arrest, he seeks pre-arrest bail. The Court seized with the bail application of accused may extend concession of bail considering the compounding character of offence. It is observed that voluntary issuance of a cheque in-fact amounts to give an undertaking by the accused that on its presentation, it shall be honoured/encashed. The dishonest intention of the person, issuing a cheque, becomes evident, the moment, the bank, through its endorsement in writing, refuses to honour the cheque. Needless to say that at same time, the offence under Section 489-F, P.P.C. also stands committed. Therefore, it may be said that the dishonouring of the cheque amounts to breach of commitment/ undertaking by the accused he made with the payee. The accused, after registration of a criminal case against him, if enters into a compromise with the person in whose favour the cheque he issued, concession of bail, can be granted to him on the affirmative nod of the complainant.

9. It may be reiterated that since on dishonouring of dishonestly issued cheque, the offence under Section 489-F, P.P.C. stands constituted. It also amounts to breach of commitment. It can safely be concluded that after entering into a compromise with the complainant for making payment of the amount either mentioned in the cheque or settled between the parties at the time of their entering into compromise, the accused once again makes a commitment and as such in case he again dishonors his commitment, which will be deemed to be a repetition and in continuation of his earlier breach of commitment, thus rendering him disentitled to further enjoy and reap the fruit of his misdeed, he earned, by way of compromise.

10. The provision of Section 345, Cr.P.C bifurcates vis-a-vis the compounding of offences, with or without the permission of court, into two categories. The august Supreme Court of Pakistan had expounded this legal proposition in the case titled "Tariq Mehmood v. Naseer Ahmed and others "(PLD 2016 SC 347) as under:- "Section 345(1), Cr.P.C. enlisted the offences which may be compounded by the specified persons without intervention of any court

Compounding in such cases took effect from the moment the compromise was completely entered into by the parties, the relevant court which was to try the offence in issue was left with no jurisdiction to refuse to give effect to such a compromise and a party to such a compromise could not resile from the compromise at any subsequent stage of the case

On the other hand Section 345(2), Cr.P.C. dealt with cases in which the offences specified therein could be compounded only with the permission of the court and in all such cases any compromise arrived at between the parties on their own at any stage was not to take effect at all unless the court permitted such compromise to be given effect to and the relevant court for the purpose was the court before which prosecution for the relevant offence was pending." The offence under Section 489-F, P.P.C., is compoundable inter-se the parties, without intervention of the Court. The role of the Court thus remains to finally give effect to such compromise in pending proceedings against the accused by way of its termination. It has been observed that while entering into a compromise, generally the accused gives an undertaking, which is normally in writing and the same is tendered in the court in any of the form i.e. affidavit, compromise deed or any other form that in case, he is granted bail, he shall make the payment of the amount, either mentioned in the cheque or agreed upon inter-se the parties, at the time of compromise. The accused, in this way, earns his liberty and saves himself from facing the rigors of jail. This liberty is outcome of a bargain with the complainant in lieu of his commitment for making payment. The compromise, after registration of case against accused amounts to an admission of his liability, once again. On forwarding a report under Section 173 Cr.P.C, by the Station House Officer, in case of trial, it may terminate, either in acquittal or conviction of the person accused of commission of the offence, by a Court of competent. The offence under Section 489-F, P.P.C. as per Schedule-II of the Code of Criminal Procedure Code, 1898, is triable by the Magistrate of the first class. In either of the situation i.e. grant of pre-arrest or post arrest bail to an accused on the basis of compromise, the effect of compromise is clearly reflected in bail granting order by the Court.

11. It may be said with great concern that because of dwindling value system, gradual decay in moral fabric of the society has occurred. Sometimes, an accused in order to achieve his nefarious, devilish desires and designs eventually effects compromise. Later-on while adopting various strategies, the accused try to hoodwink the process of law, defeating the spirit of the noble deed of compromise which amounts to breach of commitment. This situation generates further litigation. Being on rise the litigation, had caused an alarming situation in the Courts. Needless to say that unscrupulous elements while dishonouring their commitment, in-fact, try to lower down the esteem of the Court in the eyes of the public. In case, non-fulfillment of commitment made before the Court is allowed to go with immunity and it is not checked, it will shake the confidence of the public, they repose in Courts and shall create uncertainty and a sense of despair and despondency amongst the masses, eventuating into a chaotic situation in the society. Therefore, necessity is being felt that such non-fulfillment of the commitment before the Court may be dealt with stringently, instead of allowing the persons to draw a premium from their own bad deeds. It has further been observed that some opportunists and clever litigants in order to buy time from the simpleton and gentle people, keeping in their mind the involvement of procedural technicalities, causing relatively slowness, in deciding cases before Courts of law, try to cheat and defraud them with mala fide intention and to achieve their nefarious ends under the garb of compromise.

12. I hold that since the compromise can be given effect finally by a Court, competent to try the case, therefore, a duty is cast upon the petitioner to submit before the trial Court on 30.09.2019 or before, that he had honoured his commitment in terms of the compromise arrived inter-se the parties, by way of making payment of the amount, failing which, the accused/ petitioner shall lose his right to enjoy the concession of bail. The petitioner while entering into the compromise has submitted an affidavit Mark "A", which spells out that the petitioner has given undertaking to make payment of Rs.3,25,000/- till 30.09.2019, therefore, this petition is allowed in the light of terms and conditions arrived at between the parties by way of affidavit Mark "A". The petitioner after making payment of total amount, may move to the Court for his final relief in the shape of his acquittal before the trial Judge. In case of default or breach of commitment of terms of compromise, his bail granting order shall be deemed to have been withdrawn and he will be committed to custody.

13. Before parting with this order, I feel it appropriate to issue for future, certain guidelines for the trial Courts proceeding with the cases under Section 489-F, P.P.C. involving compromise between the parties arrived at pre-arrest or post arrest bail stage:- (i) A compromise deed shall be in writing and duly signed or thumb marked by the accused as well as the person in whose favour, the dishonoured cheque was issued by the accused or any other person duly authorized by the payee . (ii) In case of post arrest bail, the Court seized with the bail application due to the accused being in jail, shall also record the statement of the counsel, representing accused or any other person duly authorized by the accused for this purpose. (iii) The Court, while giving effect to the compounding character of the offence, at bail stage shall reflect the terms and conditions of the compromise in its bail granting order besides clearly stating that the accused shall only be entitled to enjoy the liberty, he has earned by way of concession of bail, provided he honours the terms of compromise deed. (iv) The accused shall make payment of amount of cheuqe or settled between the parties, to the payee on the date fixed in compromise deed or in case of any exigency within next three days. In case of any default, even in making payment of any installment, the accused shall lose his right to enjoy the concession of bail. The complainant, however may show grace and accept any request on part of the accused for extension of time. (v) In case of default, in absence of a consent of the complainant, for extension of time, in making the payment of amount settled between the parties through compromise, the bail granting order shall be deemed to have been vacated automatically on the expiry of date fixed. (vi) After seeking relief of bail on the basis of compromise, the non-compliance of its terms and conditions will amount to breach of commitment and misuse of concession of bail by the accused for the period he enjoy the said concession in the form of liberty instead of facing the rigors of jail. (vii) The complainant shall not be obliged to file a formal application for cancellation of bail under Section 497(5) Cr.P.C either before the trial Court or before any higher Court which had passed the bail granting order. However, the complainant, in case of default in making payment by the accused, may file only a miscellaneous application before the trial Court inviting its attention towards the default made by the accused, thereupon, learned trial Court shall pass an order for committing the accused to custody. (viii) All the trial Courts seized with the trial/ proceedings for the offence under Section 489-F, P.P.C., shall prepare a separate category of compromise cases with some special identity so that the case may be dealt with, in terms of bail granting order. (ix) In case, the trial Court, is satisfied that the terms of the compromise have been fulfilled and acted upon, the Court, on its own motion or on the application of either party shall give effect to the compromise, by way of termination of proceedings in the case. (x) Office is directed to transmit copy of this order to the Registrar of this Court, who shall circulate the same to all the Sessions Division Punjab for onward transmission to the courts concerned for their guidance pointed out supra. MFB/S-65/L Bail granted.