2009 PLP 904 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel has filed this bail application in F.I.R No. 300/08, dated 9-7-2008, registered at P.S. Rail Bazar, Faisalabad, under section 489-F, P.P.C.

2. According to the complainant, he deals in business of real estate and the petitioner is also in the same business. According to the complainant, they have known to each other since long time and on the basis of same relationship petitioner on 30-5-2007 requested complainant for loan of Rs.20 lacs a promise to return the same within two months. The petitioner dishonestly issued a Cheque No.51931211, dated 30-7-2007 in favour of the complainant of Rs.20 lacs to be drawn at United Bank Limited, Samundri Branch, for repayment of the above loan. However, on 1-8-2007, the above noted cheque was dishonoured by the bank, whereupon, petitioner was contacted by the complainant who requested for further time of six months for repayment of loan.

3. The learned counsel for the petitioner has contended that petitioner was arrested on 23-7-2008, hence, he has already spent four months in jail. According to him, the petitioner deserves to be released on bail as offence alleged against him is not covered by the prohibitory clause of section 497, Cr.P.C. According to him, the F.I.R itself shows that petitioner and complainant were in the same business and petitioner issued the cheque in the said background. It cannot be said that the cheque was issued, i.e. actus reus of the petitioner was coupled with Mens Rea which is a pre-requisite to attract mischief of section 489-F, P.P.C.

4. According to the learned counsel for the petitioner, a civil suit is also pending between the parties which shows that at the most dispute between the parties relate to a civil liability instead of a criminal liability. The learned counsel relies on PLD 1995 SC 34 to emphasis that petitioner being involved in a case not falling under the prohibitory clause, deserves to be released on bail. In this regard, the learned counsel has also referred to a judgment of this court, PLD 2006 Lah. 607.

5. According to the learned Deputy Prosecutor General, Punjab besides the instant F.I.R, another F.I.R No.203/08, P.S. Lytton Road, and F.I.R No.371/08, P.S. Defence Lahore, also stand registered against the petitioner under the similar offences. According to the learned counsel for the complainant, in total, 17 F.I.Rs. stand registered against the petitioner, therefore, the case of the petitioner should not be treated as a routine case. According to him, instant case has exceptional character.

6. I have considered the above arguments of the learned counsel which are not needed to be reiterated. It is true that section 489-F, P.P.C. requires that cheque must be issued 'dishonestly' as the word "issue" is pre-fixed with dishonesty in Section 489-F. Dishonesty or Mens Rea is always in the mind of an accused person and it can only be inferred from the conduct or Actus Reus of an accused person before or after committing the offence. The criminal record of the petitioner is important to judge the conduct of the present petitioner. It is also correct that ordinarily bail is granted as a rule in cases which are not covered by the prohibitory clause of section 497, Cr.P.C. In this regard, the learned counsel for the petitioner referred to PLD 1995 SC

34. But in the same judgment it is provided that bail may be refused in exceptional cases. The registration of 17 cases against the present petitioner, prima facie, reflects criminal propensity in the character of the petitioner and the same also makes instant case an exception to the general rule.

7. In view of the above discussion and reasons, this bail application is dismissed. H.B.T./M-17/L Bail refused.