2011 PLP 117 (YLR)

SH. AHMAD FAROOQ, J.

The petitioner/Syed Tanveer Hussain seeks pre-arrest bail in a case arising, out of F.I.R. No.107 of 2010, dated 18-2-2010, registered in Police Station Gulshan Ravi Lahore, under section 489-F, P.P.C.

2. Briefly, the prosecution story as narrated by the complainant in the F.I.R. is that the complainant entered into an agreement with the petitioner to sell his shop. It is alleged that the petitioner could not arrange the remaining consideration amount with the stipulated period and in this regard, an arbitration deed was executed between the parties on 13-2-2009 and it was agreed that the petitioner will pay the said remaining amount till 31-12-2009. In pursuance to the said arbitration agreement, the present petitioner gave two cheques amounting to Rs.7,00,000 and Rs.20,00,000 respec tively, to the complainant. The cheque amounting to Rs.7,00,000 was dishonoured the concerned Bank on its presentation for encashment.

3. Learned counsel for the petitioner submitted that the petitioner and the complainant entered into an agreement to sell dated 25-10-2008, whereby the complainant sold a Shop No. 2-A, situated at 73-Mall Plaza, Sharah-e-Quaid-i-Azam, Lahore, to the present petitioner in consideration of Rs.74,00,000 out of which Rs.10,00,000 were already stood paid in the form of advance rent and Rs.10,00,000 were paid as earnest money. He further submitted that the complainant earlier lodged an F.I.R. No. 817 of 2009 on 11-7-2009, wherein the petitioner was arrested and subsequently, bailed out on the basis of a compromise after paying an amount of Rs.10,00,

000. Learned counsel for the petitioner claimed that the petitioner has so far paid Rs.50,00,000 to the complainant and only Rs.24,00,000 is outstanding against him out of the total consideration amount but the complainant received cheques of Rs.27,00,000 from the petitioner under duress. Learned counsel for the petitioner also referred to the arbitration deed dated 13-8-2009 regarding the dispute between the parties. He maintained that the petitioner has filed a suit for specific performance of the agreement dated 25-10-2008 and primarily, the dispute between the parties is of civil nature. Lastly, he argued that no offence falling under section 489-F, P.P.C. is made out against the present petitioner and he has been falsely implicated by the complainant with mala fide intention.

4. Conversely, the learned counsel for the complainant as well as the learned Deputy Prosecutor-General opposed the instant petition on the ground that issuance as well as the return of the disputed cheques by the concerned bank due to insufficient funds is not denied by the present petitioner. They further submitted that the petitioner did not pay the remaining consideration amount in accordance with the agreement to sell within the stipulated period and cheques in dispute were issued with dishonest intention of non-fulfilment of an obligation. They argued that the petitioner is not entitled to the extra-ordinary concession of pre-arrest bail.

5. Arguments heard. Record perused.

6. The dispute between the present petitioner and the complainant emanated from an agreement dated 25-10-2008, whereby the complainant agreed to sell his shop to the present petitioner in consideration of Rs.74,00,

000. The complainant has so far received Rs.50,00,000 out of the total consideration amount of Rs.74,00,000 from the present petitioner, which is established from the arbitration deed, dated 13-8-2009. No doubt, the cheques in dispute were issued by the present petitioner in respect of the payment of the remaining consideration amount of the shop and the same were dishonoured by the concerned Bank when presented for encashment due to insufficient funds. But in this case, the nature of transaction, the earlier admitted payment of Rs.50,00,000 and pendency of civil litigation has to be taken into consideration far determining the dishonest intention of the present petitioner, while issuing the cheques in dispute. Needless to emphasis that dishonest intention is sine qua non for constituting an offence falling under section 489-F, P.P.C. Genuine business transaction, previous history of financial dealings and contractual, obligation may not per se fall within the mischief of section 489-F, P.P.C. Hence, in the instant case, the dispute between the parties is primarily of a civil nature, which is, prima facie, established from the agreement to sell, dated 25-10-2008, followed by arbitration deed dated 13-8-2009 and the suit for specific performance filed by the present petitioner on 17-12-2009.

7. In view of above, prima facie, the commission of an offence falling within the mischief of section 489-F, P.P.C. by the present petitioner is open to doubt and benefit of doubt is to be given to an accused even at bail stage. Resultantly, the instant pre-arrest bail petition filed by Syed Tanveer Hussain is allowed and pre-arrest bail already granted is confirmed subject to submission of fresh bail bonds in the sum of Rs.1,00,000, with one surety, in the like amount to the satisfaction of learned trial Court. H.B.T./T-52/L Bail confirmed.