2015 P Cr (PLP)

MUNIR AHMED CHAUDHARY, J.

This revision petition has been filed against the judgment and order of Sessions Judge Mirpur dated 10-3-2014, through which bail application after-arrest in an offence under section 489-F, A.P.C. filed by the present petitioner was refused and order of the Civil Judge/Judicial Magistrate Mirpur regarding cancellation of bail application of the petitioner was upheld.

2. Brief facts giving rise to the present revision petition are that the complainant Sajjad-ur-Rehman presented a written report to Superintendent of Police Mirpur, stating therein that the complainant and Zafar Iqbal had money dealing of Rs. 8 lacs and Zafar Iqbal issued a cheque of Faysal Bank which was dishonoured. The said Zafar Iqbal sought more time for the payment but ultimately he refused. It was prayed through the application to initiate criminal proceedings against the said Zafar Iqbal. A case under section 489-F, A.P.C. through F.I.R. No.39/14 was registered at Police Station Thothal against the said Zafar Iqbal. The petitioner/accused was arrested. The petitioner filed a bail application before Civil Judge/Judicial Magistrate Mirpur, which was dismissed on 20-2-2014. Later on, the petitioner filed an application for bail before Sessions Judge Mirpur on 22-2-2014. After hearing the parties, the learned Sessions Judge Mirpur refused to grant the bail of the petitioner on 10-3-2014. Now, the petitioner/accused has filed the instant revision petition against the order of refusal of the learned Sessions Judge before this court.

3. Arguments were advanced by the learned counsel for the petitioner/accused and the learned Additional Advocate General. The learned counsel for the petitioner argued that the petitioner has falsely been implicated in the present case and complainant has got registered a criminal case due to differences of business between him and the petitioner with the connivance of police. It is yet to be inquired and proved that whether the cheque was issued dishonestly and knowingly that the said cheque shall be dishonoured or not? The offence under section 489-F, A.P.C. is punishable up to three years which does not fall within prohibitory clause of section 497 of Cr.P.C. The petitioner has been sent to judicial lockup and he is no more required by the police for investigation purpose. The case was registered after more than two months when the cheque was dishonoured. The learned counsel requested to release the petitioner on bail accepting the revision petition and referred the following precedents in support of his arguments. 2010 YLR 624 2011 PCr.LJ 869 PLD 2013 Lah. 442

4. Mr. Muzaffar Ali Zafar, Additional Advocate-General controverted the arguments advanced by the learned counsel for the petitioner and contended that the petitioner was nominated and his role was clearly mentioned in the F.I.R. The petitioner issued a cheque in favour of the complainant dishonestly and knowingly that it will be dishonoured. The offence is non-bailable and the petitioner does not deserve to be released on bail.

5. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and perused the precedents in the light of facts of the present case minutely. The offence under section 489-F, A.P.C. does not fall within prohibitory clause of section 497 of Cr.P.C. because the maximum punishment available for the said offence can be awarded up to three years. The important fact to be proved for constitution of the offence under section 489-F, A.P.C. was issuance of the cheque dishonestly and knowingly that it will be dishonoured later on. This fact cannot be determined at bail stage and it requires further probe. It is an admitted principle of law that dishonestly discharging of an obligation and genuineness of signatures of the drawer were matters that require probe and evidence. Mere issuance of a cheque which is subsequently dishonoured does not constitute an offence under section 489-F, A.P.C. unless it is proved that the same is issued dishonestly and for repayment of loan or for discharging of any obligation. The above-mentioned principle has been reiterated in the precedents referred by the learned counsel for the petitioner. The petitioner is behind the bars since 13-2-2014. The investigation has been completed and he has been sent to judicial lockup. Meaning thereby that the petitioner/accused is no more required by the police for the purpose of investigation. It will serve no useful purpose to keep the petitioner in the lockup. It is also an admitted principle of law laid down in the precedent 2010 YLR 624 that bail cannot be refused in the offence under section 489-F, A.P.C. when no further investigation has to be made. In the light of circumstances mentioned above, it seems just and proper to allow the bail application of the petitioner/accused. So, it is hereby ordered that the petitioner/accused shall be released on bail provided he furnishes bail and personal bonds in the sum of Rs. 5,00,000 each to the satisfaction of any Judicial Magistrate at Mirpur, provided further that the petitioner is not required in any other offence or case. AG/45/HC(AJ&K) Bail granted.