2016 PLP 202 (YLRN)

S. 497(5)

Penal Code (XLV of 1860), S. 489-F

Dishonouring of cheque

Bail, cancellation of

Signatures of accused

Determination

Alteration in cheque

Complainant was aggrieved of grant of pre-arrest bail to the accused

Validity

Cheque in question was altered and signatures on such alteration were different from signatures of accused

Fact regarding repayment of loan or fulfillment of any obligation was disputed and the same required evidence

False implication of accused could not be ruled out and matter required further inquiry and the same was rightly considered by Trial Court while confirming bail to accused

No sufficient materials and grounds were raised nor any illegality pointed out in the order to seek cancellation of bail which prima facie was prerogative and discretion of Trial Court deciding a bail application in accordance with law

Grounds and parameters for seeking cancellation of bail are more stringent and different from the parameters which were required to be taken into consideration at the time of grant of bail to accused

High Court declined to interfere in the bail order passed by Trial Court as otherwise case of the accused did not fall within the prohibitory clause of S.497 of Cr.P.C.

Petition was dismissed in circumstances. [Paras. 3 and 4 of the judgment] Irshad Ali Shar for Applicant. ORDER AQEEL AHMED ABBASI, J.

Through instant Criminal Miscellaneous Application filed under section 497(5), Cr.P.C., the applicant seeks cancellation of bail, which was granted by the learned Sessions Judge, Malir, Karachi, in Crime No. 419/2015 under section 489 F, P.P.C. registered at P.S. Shah Latif Town, on the grounds that the learned trial Court did not examine the evidence, which was produced by the complainant in the shape of cheque issued by the accused for an amount of Rs.30,00,000/-and the slip of the bank, which reflects that there was no sufficient funds in the account of the accused. Per learned counsel, the applicant has been cheated by the accused in respect of partnership business of showrooms of vehicles. It is further contended that the accused owed an amount of Rs.30,00,000/- as final settlement of account for which, he had issued such cheque and on presentation, the same was dishonoured on account of insufficient funds. Per learned counsel, learned trial Court has failed to consider the relevant facts and passed the impugned order by confirming the pre-arrest bail of the accused. "In order to verify whether the cheque leaf was given in the year 2015 or otherwise, I/O was directed to get verification from the Bank concerned, whereby it has been reported vide letter dated 10.10.2015, issued by Manager Allied Bank Gulshan-e-Hadeed Branch Karachi, that; in the cheque leaf amount was altered. Besides, account holder sign at beneficiary cutting is deferred which is again altered. Such record prima facie supports version of the applicant. Moreover, statement of Bank account in the name of applicant Nazeer Ahmed is placed on the record, showing an amount of Rs.2,00,000/- debited from the account of applicant and credited in the account of complainant on 18.03.2014. Therefore, I am convinced to the contentions made by the learned counsel for the applicant that the case of applicant comes within the ambit of further enquiry, especially in the circumstances in which the applicant does not deny the issuance of the cheque leaf in favour of complainant, hence it is yet to be determined at the time of trial, whether amount is already paid to the complainant and alleged cheque was issued for an amount of Rs.30,00,000/- or otherwise. I have also gone through the case law cited by the learned counsel for the complainant, but with due respect of the Honorable apex Courts, the fact and circumstances of the case in hand are quite distinguishable, as in all those cases, the cheques were issued dishonestly with ulterior motives, however, in the instant case, apparently it transpires that amount of the cheque is tampered and such fact is also given in the report of the Bank Manager concerned."

3. From perusal of record and hereinabove finding as recorded by the learned Sessions Judge, Malir, it appears that the applicant could not demonstrate the ingredients of section 489-F, P.P.C., which requires that if a cheque is issued with dishonest intention towards payment of loan or fulfillment of an obligation, then cognizance under section 489-F, P.P.C. is taken. Whereas, in the instant case, admittedly, subject cheque has been altered and the signature of such alteration are reportedly different from the signature of the accused. The fact regarding re-payment of loan or fulfillment of any obligation is disputed, hence requires evidence. False implication of accused could not be ruled out under the facts and circumstances of the case, whereas, matter requires further inquiry and was rightly considered by the learned Sessions Judge while confirming bail to the accused. No sufficient materials and grounds have been raised nor any illegality pointed out in the impugned order to seek cancellation of bail, which prima facie is prerogative and discretion of the learned trial Court deciding a bail application in accordance with law. Moreover, the grounds and parameters for seeking cancellation of bail are more stringent and different from the parameters, which are required to be taken into consideration at the time grant of bail to an accused. 3(sic.) Accordingly, I do not find any merit in the Instant Criminal Miscellaneous Application seeking cancellation of bail in a case, which otherwise does not fall within the prohibitory clause of section 497, Cr.P.C., which is dismissed in limine along with listed application. However, it may be observed that observations made hereinabove are tentative in nature and may not prejudice the trial, which shall be proceeded strictly in accordance with law on the basis of material produced and the evidence available on record. MH/A-40/Sindh Application dismissed.