2011 MLD 793 (PLP)

TUFAIL H. EBRAHIM, J.

Applicant/accused Mst. Doris Thomas widow of George Alexander Thomas is involved in case Crime No.343/2010 registered at Police Station Jamshed Quarters, Karachi for the offences punishable under sections 489-F/420, P.P.C. was granted ad interim bail before arrest by this Court vide order dated 18-8-2010. Brief facts of the prosecution case according to F.I.R. lodged on 7-7-2010, on the basis of statement under section 154, Cr.P.C. of complainant Imran Naqi son of Muhammad Naqi, in which he has stated that on 5-10-2006 a memorandum of understanding was executed with Mst. Doris Thomas for construction of flats after demolishing her bungalow. On the basis of such agreement, money was paid to the son, the nominee of Mst. Doris Thomas. On 23-3-2009 the said Memo randum of understanding was cancelled and Mst. Doris Thomas in consideration thereof issued 6 post dated cheques of different dates bearing No. (1) 5568923, (2) 5568926, (3) 4458922, (4) 5568924, (5) 5568929, (6) 5568930 of Bank Al-Habib Limited, Allama Iqbal Road Branch. That, when the said cheques were presented for encashment by the complainant on the due dates, the same were dishonoured by the bank on account of insufficient funds. The applicant/accused has approached the Court of District and Sessions Judge, Karachi East and moved pre-arrest bail application. The learned IVth Additional Sessions Judge, Karachi East had granted ad interim bail before arrest to the applicant/accused, but later on the interim order has been recalled and bail application of the applicant/accused was rejected vide order dated 26-7-2010. Learned counsel for the applicant/accused has contended that the applicant/accused is an old lady of 68 years and in good faith had entered into a memorandum of understanding with the complainant for development and construction on her plot but due to failure on the part of the complainant the said Project could not be commenced. Per learned counsel in pursuance of the said agreement certain amount was received by the son of the applicant/accused and the complainant was to commence construction. Per learned "counsel, the applicant/accused under coercion of the complainant had signed certain documents and cheques. The said cheques were given to the complainant towards the agreement and the same were not issued dishonestly or on account of repayment of loan or fulfilment of any obligation. Learned counsel further contended that the complainant has also filed a civil suit against the applicant/accused for specific performance of agreement and recovery of paid amount, which is pending adjudication before this Court. Per learned counsel the F.I.R. has been lodged for ulterior and mala fide reasons and the applicant/ accused being old lady is suffering from heart ailment and diabetes and if sent to jail would have very serious effect on her health and life. Per learned counsel the case is based on documentary evidence the applicant/ accused is not required for any further investigation. The alleged offence does not come within the prohibitory clause of section 497 of Cr.P.C., the interim bail granted to the applicant/accused should be confirmed. In support of his contention, learned counsel has relied upon the following case law:-- (I) 2010 YLR 1383, (2) 2007 PCr.LJ 1824, (3) 2005 MLD 1021, (4) 2007 PCr.LJ 1064, (5) 2009 YLR 257 and (6) 1973 PCr.LJ

397. The learned counsel for the complainant has contended that it is admitted position that the applicant/accused had issued the cheques. The joint venture agreement/memorandum as to the construction on the plot of the applicant/accused, was subsequently cancelled by the applicant/ accused and in consideration of such cancellation the applicant/accused had issued the said cheques for repayment of money paid/incurred by the complainant. Per learned the cheques on presentation have been dishonoured by the bank for reasons of insufficient funds. This amply shows that the applicant/accused had issued the said cheques with dishonest intentions. Per learned counsel the complainant has also instituted a suit against the applicant/accused and the applicant/accused has committed an offence, which comes within the ambit of financial corruption, therefore she is not entitled for the concession of bail. In support of his contention of learned counsel relied upon 2003 SCMR 573, 1991 MLD 368, and 1991 PCr.LJ(sic). Learned A.P.-G. has adopted the arguments of the learned counsel of the complainant and has vehemently opposed the confirmation of pre-arrest bail and has submitted that old age simply is not a sufficient ground for grant of bail. Per learned A.P.-G. the applicant/accused has dishonestly issued six cheques which were dishonoured, as such she is not entitled for the relief of pre-arrest bail. In support of her contention she has relied upon 2009 MLD 1189. I have heard die arguments advanced by the learned counsel for the parties and have gone through the record and case laws submitted by the learned counsel. Admittedly the cheques were issued by the applicant/accused and the same have been dishonoured by the bank for reasons of insufficient funds. The name of the applicant/accused is appearing in the F.I.R. and specific role has been assigned to her. From the record it prima facie appears that there was some joint venture agreement and certain amount was paid by the complainant to the son/ nominee of the applicant/accused and subsequently the said agreement was cancelled by the applicant/accused and in consideration of such cancellation cheques were issued to the complainant. The said cheques on presentation have been dishonoured by the Bank for reasons of insufficient funds and this shows that the applicant/accused had issued the said cheques with dishonest intentions. There is no apparent mala fide or malice on the part of the complainant to falsely implicate the complainant in the F.I.R. Prima facie the version of the applicant/ accused remains questionable. The offence under section 489-F, P.P.C. provides maximum punishment of three years irrespective of the amount of dishonoured / cheque, hence the offence is not covered by the prohibitory clause of section 497, Cr.P.C. But as held time and again by our' superior judiciary that if any offence, although not falling under the prohibitory clause of section 497, Cr.P.C., would simply not justify the grant of extraordinary relief of bail in cases relating to pre arrest bail, 'as deeper appreciation of material available on record could not be, done while deciding pre, arrest bail application. The filing of civil suit by the complainant is no bar to commencement of criminal proceedings Prima facie the applicant/accused has failed to show that the cheques were not dishonestly issued for payment of any obligation or the applicant/accused is seriously ill and such illness could not be treated in custody or her arrest would be detrimental to her life. In view of what has been stated above the applicant/accused has not made out a case for confirmation of the pre-arrest bail and hence the interim pre-arrest bail granted vide earlier order in the above criminal bail. Application is hereby recalled. Consequently this criminal bail application stands dismissed. Needless to mention that the above observations and discussion are only tentative in nature and should not influence the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial. I further direct the trial court to decide this case expeditiously and preferably within a period of two months. H.B.T./D-1/K Bail refused.