2017 PLP 415 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned bail application, applicant Muhammad Hassan has impugned order dated 23.07.2016, passed by the Court of learned Sessions Judge, Tando Muhammad Khan, whereby his earlier bail application was declined, he seeks pre-arrest bail in Crime No.68/ 2015, registered at Police Station Tando Muhammad Khan, under sections 489-F, 420 and 34, P.P.C.

2. Necessary facts spelt out from instant bail application are that on 13.06.2015, accused Muhammad Hassan along with others came at the house of complainant and handed over cheque in respect of payment of sugarcane amounting to Rs.300,000/- bearing account No.0332694435103, dated 15.06.2015 of First Micro Finance Bank Ltd; however, on presentation said cheque was dishonoured due to insufficient amount, hence instant FIR.

3. Learned counsel for applicant vehemently contended that applicant is innocent and has been falsely implicated in instant crime by the complainant; that challan of the case has been submitted and charge has also been framed against the applicant and he has been appearing before the learned trial Court regularly; that alleged offence is punishable with three years and there is dispute over payment of sugarcane crop, as brothers of applicant were haris at the land of complainant; that brothers of applicant were haris but complainant has not paid their dues; that at first instance, applicant was admitted to interim pre-arrest bail by the learned trial Court, which has been declined vide impugned order; that on merits applicant has a good case and if he is not admitted to bail, he will be arrested, disgraced and humiliated at the hands of police.

4. Learned DPG opposed the contentions raised by learned counsel for applicant and contended that name of applicant is mentioned in FIR and he issued subject cheque in favour of the complainant, but same was dishonoured, which shows mala fide and fraud on the part of applicant. Complainant submitted that he sold sugarcane to applicant, but he failed to pay its sale price and in lieu of said outstanding amount, he issued a cheque which was dishonoured, hence he is not entitled for bail.

5. Heard learned counsel for the parties and perused the material available on record which emanates that there are allegations of non-payment of outstanding amount in respect of sale of sugarcane and applicant issued the subject cheque worth Rs.3,00,000/- in favour of complainant which was dishonoured on its presentation before concerned Bank due to insufficient funds. Conversely, there are allegations that brothers of applicant were working as haris of the complainant and their dues are outstanding against the complainant who did not pay to them, while complainant has denied such allegations. To constitute an offence under section 489-F, P.P.C., it is essential that subject cheque should be issued by the accused with dishonest intention to defraud towards repayment of a loan or fulfillment of an obligation and accused was well in knowledge that requisite amount was not available in the account against which said cheque has been issued by him and same would be dishonoured on its presentation before the concerned bank. If element of dishonest intention is missing in issuance of subject cheque, the allegations to defraud the complainant by the accused requires further probe for which recording of evidence of PWs and prudent examination of material is essential. Indeed, the alleged offence, which is punishable for 03 years, does not fall within prohibitory clause of section 497, Cr.P.C. At present, challan has been submitted and applicant is no more required for investigation and even charge has been framed by the learned trial Court, therefore, declining of bail to applicant will not serve any useful purpose.

6. Considering the above facts and circumstances, interim pre-arrest bail already granted to applicant vide order dated 26.08.2016, is hereby confirmed on same terms and conditions. Learned trial Court is directed to conclude the trial preferably within a period of two months and in case applicant fails to appear before the trial Court or frustrates the trial by any mean, the learned trial Court will be at liberty to cancel the bail granted to the applicant and to initiate action against his surety. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of trial. Bail application stands disposed of. WA/M-190/Sindh Bail confirmed.