P L D 2005 Lahore 607 (PLP)

The petitioner is wanted in case F.I.R. No.20 of 2005 registered at Police Station Rangmehal, Lahore under section 489-F, F.P.C.

2. He was allowed pre-arrest bail by learned Sessions Court at Lahore but later this bail was not extended and he came to this Court asking for a similar relief. He is present here having been granted ad interim pre-arrest bail vide orders of this Court dated 18-2-2005.

3. The main plea taken on his behalf is that the cheque issued was not an act done in isolation with any dishonest intention but this was issued during the course of a business relationship with the other party and which relationship is fairly old. That the complainant side was given cheque as security for advance payment until the complainant fulfilled its part of the contract when actual payment is made and the cheque returned.

4. Learned counsel for the petitioner showed several cheques which were earlier issued to the complainant side and taken back after supply of material and payment made through cash.

5. It was, therefore, urged that there was no dishonest intention on the part of the petitioner, whereas, there as a non-fulfilment of the contract on the part of the complainant side which led to serious consequences entailing loss to the petitioner who had to file a suit for compensation and the recovery of the same, because he could not send these goods in time to importers in the U.S.A.

6. It is further stated that the cheque was not dishonoured rather it was referred to the drawer which has its own means under the Negotiable Instrument Act. The complainant side does not deny the past business relationship.

7. Regarding the losses suffered by the petitioner, the matter is one of controversy. But there is no denial of the fact that a civil suit had been filed by the petitioner side.

8. In this view of the matter, it is a matter of further inquiry B whether dishonesty was the consideration with the petitioner at the time he issued the cheque.

9. Section 489-F of P.P.C. came about on 20-5-2002 and was introduced to the statute book in the year 2002 with the sole purpose to curb fraud and dishonesty which has to be established on a case to case IC basis. But where there were business transactions, genuine disputes and contractual obligations, an offence may not be the intention.

10. The rationale behind the enactment of section 489-F of F.P.C. does not call for a mechanical action immediately when a cheque is returned by a banker but is to be used only where, prima facie, the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan. The past conduct of the party being also a factor to be seen.

11. The police record was also shown to this Court, particularly the Zimni of 26-4-2005 which makes mention of alleged claims inter se the parties. Even otherwise the punishment prescribed is not beyond 3 years. The petitioner has placed on record photo-copies of the Ledger Book and other documents to reflect the old standing relationship with respect to business and to further establish that had it not been a genuine dispute for delayed supply of goods, the payment against cheque may not have been stopped at all as had happened in the past.

12. In this case the petitioner has been joining the investigation and has fully explained his position which indicates that there is no need for any further investigation.

13. This case, therefore, is one where it is as yet to be determined whether fraud and dishonesty was the aim and the factors which caused the petitioner to stop the payment. Consequently, this Court confirms the bail of the petitioner on these grounds and same Machalkas. N.H.Q./A-464/L Bail granted. ***