2010 P Cr (PLP)

ZUBDA-TUL-HUSSAIN, J.

In a case under section 489-F P.P.C., registered at Police Station, Defence-A, Lahore; vide F.I.R. No.99, dated 8-2-2008, the allegation against the petitioner is that by misrepresenting the facts he persuaded the complainant to purchase seven files of the plots in the Airport Avenue Society, Sialkot and received Rs.65 Lacs as the price thereof whereas later on it transpired to the ?complainant that the actual price of the land was Rs.26,80,000/- and the petitioner had grabbed an amount of Rs.38,20,000/- from him by fraud and misrepresentation. As the matter was taken up by the complainant, the petitioner, it is alleged; conceded the liability and then to discharge the same issued two cheques, one for Rs.20,00,000 and the other for Rs.18,20,000 but the dishonesty of the petitioner came to surface when on presentation to the bank both the cheques were dishonoured. This lead to the registration of the aforesaid case against the petitioner in which he has applied for post-arrest bail, on the ground that he is innocent and has been roped into the criminal litigation with a mala fide, intention.

2. The learned counsel for the petitioner has argued that no liability against the petitioner arises under section 489-F, P.P.C. as the matter primarily from its inception was a business transaction between the parties which the complainant had joined of his free consent and by accepting the terms and conditions of the sale of the land/files of the plots mentioned above. He further argued that the prosecution under section 489-F, P.P.C. was also unwarranted for the reason that a case F.I.R. under sections 420 and 468, P.P.C. regarding the same transaction of land/plots had already been registered which encompassed the controversy of payment of Rs.65,00,000 as well. The learned counsel next contended that the sentence for the offence provided being upto three years of imprisonment only it did not attract the prohibition of section 497, Cr.P.C. It has also been stated that the nature of the payment has yet to be determined which fact renders it a case of further enquiry against the petitioner.

3. Opposing the bail petition, the learned D.P.-G. stated that the petitioner not only committed fraud upon the complainant and deprived him of a heavy amount of Rs.38,20,000 but also perpetuated his dishonesty by issuing the cheques knowing that the same would not be honoured by the bank. According to the learned D.P.-G. in the facts and circumstances of the case the petitioner is not entitled to bail merely for the reason that the offence does not fall under the prohbibitor clause under section 497, Cr.P.C.

4. The contention of the learned counsel for the petitioner that in the event of registration of the case under sections 420/468, P.P.C. There was no valid occasion for dragging the petitioner in another case under section 489-F, P.P.C. on the same facts and circumstances, is essentially misconceived. Both the matters have different and independent entity: Initially the petitioner had allegedly persuaded the complainant to purchase the land/plots for Rs.65 Lacs as against the alleged actual price of Rs.26,80,

000. The set of offence under section 420 etc. ended here. Therefore, it warranted registration of a case under section 420 etc. only.

5. The other set of facts and the offence cropped up when subsequently with a view to settle the matter the petitioner issued the two cheques and the same were dishonoured on presentation to the bank. The issuance of cheques with the alleged dishonest intention was an independent offence and, therefore, validly warranted registration of a case under section 489-F, P.P.C.

6. Where the various alleged criminal actions of a person have given rise to more than one offences and each offence has its own independent inception, the registration of independent cases for each of such offences will not be prohibited by law. It is of course true that the offence committed in the same series of transactions of facts can be jointly prosecuted by one F.I.R. but when a subsequent offence has been committed independently it is not necessary that it be clubbed with the , earlier offence/F.I.R.

7. Seen in this perspective the registration of independent F.I.R. under section 489-F, P.P.C. is a valid instrument for putting the machinery of law into force because the commission of fraud which was the subject-matter of earlier F.I.R. was based upon misrepresentation of facts and extortion of extra money from the complainant and the subsequent issuance of the cheques with dishonest intention was a fresh offence liable under section 489-F, P.P.C. Hence, for the more reason that two different cases have been registered in relation to the grievance of the complainant does not entitle the petitioner for the grant of bail. 7-A There is no doubt that the normal business transaction should never be made the basis or subject of criminal liability and disputes of such nature should better be resolved through the measures other than the criminal litigation but the present case cannot be terms as a pure civil dispute as it involves the alleged mens rea of the petitioner regarding the alleged dishonest and fraudulent representation of facts and then of dishonestly issuing the cheques which were going to be bounced later on. Hence, the principle that in matters of business transactions the liability under section 489-F, P.P.C. may not be placed upon an accused, cannot be applied to the rescue of the present petitioner.

8. As to the contention that the nature of the payment having not been determined the case is one of further enquiry against the petitioner, it can safely be said that the contention is misconceived because the payments as such are not disputed nor their quantum is in controversy. The petitioner received Rs.65,00,000 and issued cheques for Rs.38,20,

000. As the cheques have been issued by the petitioner and admittedly regarding the discharge of liability, at-least at the present stage there is no ambiguity about the nature of the payments nor for that reason it can be termed as a case of further enquiry against the petitioner.

9. Now comes the vital controversy of this case. There is no cavil with the proposition that the alleged offence carries a liability for a sentence which may extend to imprisonment for three years and as such the prohibition of section 497, Cr.P.C. is not attracted to it. It also cannot be denied that in the cases which are not covered by the prohibitory clause of section 497, Cr.P.C. grant of bail is a rule and refusal is an exception yet it also cannot be denied that the bona fide of mala fide of the parties to a litigation are never irrelevant. The mala fide vitiates even the most sacred transactions.

10. No doubt the dishonesty carries an in-built element of mala fide and the dishonesty punishable under the law has to be dealt with only to the extent to which the law makes it an offence. Still I am of the view that an out and out mala fide which injures not only the valuable rights of a party but also causes severe mental and psychological agony to the effected persons in addition to any financial loss has also to be given due consideration. If the people are simply allowed concession, such as the bail, on the mere ground of absence of prohibition of section 497, Cr.P.C. while the circumstances show the gravity of the matter not only for an individual but spoiling the economic and social life of his whole family, this may tend to perpetuate the commission of offences of the same nature. The alleged extortion of heavy amount of Rs.38,20,000 supplemented by dishonest issuance of unholy cheques rendered, it as case of grievous nature. The grant of bail being a discretionary concession would of course be not warranted in such situation. While considering this aspect of the case and the reasons for refusing the bail I do have in my mind the circumstances and the dictum of the judgments in the case of Waseem Bari v. The State 2008 YLR 760 (Lahore) and Muhammad Tariq Javed v. The State 2008 YLR 947 (Lahore) I am conscious of the fact that the latter case dealt with the principles applicable to a petition for pre-arrest bail yet I am convinced that the ratio thereof is the same which I had in my mind while relying upon this judgment.

11. In view of what has been discussed above, the bail petition is dismissed. H.B.T./M-812/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.