2010 P Cr (PLP)

MIAN FASIH-UL-MULK, J.

Ali Abbas, respondent No.1 involved in case registered vide F.I.R. No.995 dated 18-12-2003 under section 489-F, P.P.C. Police Station Cantt. Abbottabad was granted pre-arrest bail by learned Additional Sessions Judge-V, Abbottabad vide order dated 15-7-2009.

2. Feeling aggrieved, the complainant Shah Murtaza has moved for cancellation of bail, inter alia, on the grounds that the respondent No.1 is directly charged in the F.I.R; who has grabbed heavy amount of petitioner and remained absconder for a long period of six years. He further contended that because of this heinous and immoral act of respondent, the petitioner and his family have not only sustained financial loss but have undergone through severe and mental agony. Learned counsel next argued that the order of learned lower Court is arbitrary and fanciful as no mala fide was alleged by the respondent; therefore, confirmation of pre-arrest bail was not justified in the circumstances of the case.

3. On the other hand learned counsel for respondent opposed the bail cancellation petition and contended that respondent has allegedly filed a civil suit for settlement of dispute between the parties, which is pending adjudication. He further contended that the disputed cheques were stolen one and in this behalf the respondent reported the matter to the Bank concerned. It was finally argued that the offence does not fall within the prohibitory clause of section 497, Cr.P.C.

4. I have heard the learned counsel for the petitioner, learned State counsel assisted by learned counsel for the respondent and perused the record.

5. The respondent had allegedly issued cheque No.25589354 for an amount of Rs.20,35,000 dated 1-12-2003, cheque No.25589355 for an amount of Rs.40,000 dated 1-12-2003 and Cheque No.25589356 for an amount of Rs.15000 in favour of complainant which cheques were presented in the Bank on 5-12-2003 but were dishonoured. Complainant lodged F.I.R. on 18-12-2003. The defence of respondent is that the disputed cheques were stolen and in this behalf the respondent has already reported the matter to the Bank concerned on 3-7-2003.

6. On perusal of disputed cheques it transpires that each cheque bear two signatures of accused/respondent one under the figure of amount and other under Cross "// ". It is thus clear that these are cross-cheques favouring complainant not only filed by respondent but signed on two places. The story that the cheques in question out of the cheque book were stolen or lost does not appeal to mind.

7. Soon after registration of F.I.R. the respondent were into hiding, was declared proclaimed offender and a perpetual warrant of arrest was issued against him. He remained absconder for long six years.

8. No doubt, the respondent is charged under section 489-F, P.P.C. which offence does not fall within the prohibitory clause of section 497, Cr.P.C. but it has been held by august Supreme Court in a case reported in 2007 SCMR 174 that it is not a rule of universal application. Each case has to be seen through its own facts and circumstances, the grant of bail, no doubt is a discretion granted to a Court, yet the exercise of it cannot be arbitrary, fanciful or perverse. Further, it is also settled that a fugitive from law loses some of his legal rights. The respondent remained absconder for long six years having caused not only financial loss but also confronting the complainant and his family with mental and psychological agony as alleged by complainant. The long abscondence of respondent also disentitles him to the concession of bail.

9. In the circumstances, this bail cancellation application is allowed and impugned bail granting order dated 15-7-2009 is set aside. The respondent, who is present in Court is taken into custody and handed over to local police for investigation. However, the prosecution is directed to complete the investigation within a shortest possible time and then submit the challan for trial of the accused within a fortnight and thereafter the learned trial Court is directed to dispose of the case within six months positively. H.B.T.112/P Bail cancelled.