2018 PLP 338 (YLR)

AFTAB AHMED GORAR, J.

Applicant Shah Alam son of Zaheer Ahmed sought for post arrest bail. Applicant is facing trial in connection with Crime No. 118 of 2017. Police Station North Nazimabad, Karachi, registered under section 489-F Pakistan Penal Code. Earlier the bail plea of the applicant was declined by the Court of learned VI-Additional Sessions Judge, Karachi (Central) vide order dated 10-08-2017.

2. The sum and substance of the prosecution story as is envisaged in the FIR are that there was business deal with regard to the fish stock in between complainant and the applicant whereby complainant paid cash of Rs.20,53,000/ to the applicant but applicant did not abide by the terms and conditions settled for the said deal; on demand made by the complainant for return of his money, applicant Shah Alam paid cash amount of Rs.400,000/- and for the remaining amount applicant issued post-dated four cheques in favour of complainant amounting to Rs.16,53,000/- drawn on JS Bank P.E.C.H.S. Branch, Karachi, all cheques were dishonored by the Banker of the applicant; hence this FIR.

3. Mr. Saadat Hassan, advocate, representing the applicant contended that applicant is absolutely innocent and have falsely been implicated in this case with mala fide intention just to blackmail the applicant; per learned counsel complainant made no efforts after getting the cheques dishonored and malafidely lodged the instant FIR; per learned counsel Section 30 of Negotiable Instrument Act, 1881, is very much mandatory but complainant did not issued such notice to the applicant; per learned counsel the offence which could falls within the domain of section 489-F, P.P.C. does not fall within subsection (1) of section 497, Cr.P.C: per learned counsel this is a case of no evidence, hence it falls under subsection (2) of section 497, Cr.P.C; per learned counsel it is yet to be determined whether the present applicant has committed the alleged offence or not; lastly learned counsel prayed that the applicant may be enlarged on post arrest bail. Learned counsel for the applicant has relied upon 2007 PCr.LJ 78, 2014 YLR 567, 2007 YLR 1709, 2007 SCMR 1392, 2013 YLR 2079, PLD 2013 Lah. 472 and 2003 YLR 435.

4. Mr. Waqar Alam Abbassi, advocate, representing the complainant contended that applicant has admitted business transaction while returning an amount of Rs.400,000/= to the complainant; per learned counsel for the remaining amount applicant issued four cheques which were dishonored by the Banker of the applicant; per learned counsel no doubt Section 30 of the Negotiable Instruments Act, 1881, is mandatory but the ingredients of Section 489-F, P.P.C. are also in the field i.e. a separate recourse under the Criminal Justice System has been provided by the legislature for the complainant; per learned counsel if applicant once is bailed out his amount would be buried because applicant is not in the habit to return the cash amount as was handed over to him by the complainant; lastly learned counsel prayed for dismissal of the bail plea of the applicant.

5. Ms. Seema Zaidi, DPG, for the State oppose the grant of bail and contended that applicant was well in the knowledge with regard to the business transaction of fish stock; per learned DPG if applicant was honest so there would be no question of breaking of business deal; per learned DPG some amount has been returned by the applicant to the complainant and for remaining applicant issued postdated Cheques in favour of the complainant which were dishonored by the Banker of the applicant; per learned DPG applicant intentions seems to have been bent upon mala fide and dishonesty; per learned DPG the bail plea of the applicant may be dismissed. Learned DPG has relied upon 2014 YLR 1253, 2013 PCr.LJ 1022, 2009 SCMR 174, 2012 PCr.LJ 1956 and 2016 MLD 451.

6. Heard and perused.

7. Admittedly there was business transaction between applicant and the complainant with regard to the fish stock as alleged in the prosecution story; the amount disputed is very much admitted by the applicant. It transpires from the contents of FIR that applicant returned an amount of Rs.400,000/- to the complainant and for the balance amount applicant was able to issue post-dated cheqeus amounting to Rs.16,53,000/- to be drawn on JS Bank PECHS Branch Karachi instead Cheques were en-cashed but same met with the result of "dishonor" by the Banker of the applicant. It has been surfaced that there was dishonesty on the part of the applicant while issuing such Cheques of huge amount in favour of the Complainant. The issuance of cheques with dishonest intention would not entitle the applicant for bail on the ground that there are monetary disputes between the parties, as the possibility of issuance of cheques dishonestly by the applicant could not be ruled out at this stage. Admittedly, offence under section 489-F, P.P.C. is maximum punishable upto 3 three years' RI and ordinarily in such like cases grant of bail is a rule and refusal is an exception. In the case of Shameel Ahmed v. The State reported in 2009 SCMR 174, it has been held as follows:

S. 497

Bail in a case not falling within the prohibitory clause of S. 497, Cr.P.C.

Principles--Grant of bail in cases not falling within the domain of prohibition clause of proviso to S. 497, Cr.P.C. is not a rule of universal application

Each case has to be seen through its own facts and circumstances

Grant of bail, no doubt, is a discretion granted to a Court but its exercise cannot be arbitrary, fanciful or perverse"

8. As discussed supra, the applicant is not entitled for the concession of post arrest bail at this stage, therefore, the plea of bail, is declined. WA/S-70/Sindh Bail refused.