2014 PLP 372 (YLR)

LAL JAN KHATTAK, J.

Petitioner Qismatullah through the instant application seeks his release on bail in case registered against him under section 489-F, P.P.C. at Police Station Cantt: D.I.Khan vide F.I.R. No. 371 dated 9-6-2013.

2. Short facts of the case are that complainant Muhammad Ramzan moved an application to the DPO D.I.Khan to the effect that pending adjudication of a bail before arrest matter in a case under section 489-F, P.P.C., the petitioner-accused issued him a cheque of Rs.1,78,00,000 and on the basis of this cheque compromise was effected between him and the petitioner who then got confirmed his bail before arrest. The complainant further alleged in the application that the cheque on its presentation to the concerned bank was dishonoured for insufficient amount in the bank account of the drawer, i.e. the present petitioner. For above bouncing of the cheque a case was registered against the petitioner under section 489-F, P.P.C. vide F.I.R. No.371 dated 9-6-2013.

3. Learned counsel for the petitioner in support of the bail plea contended that keeping in view the business relations between the parties the matter is purely of a civil nature which cannot be comprehended under the penal law. He further stated that regarding the same alleged disputed amount earlier to the instant case the complainant has got registered a criminal case against the petitioner under section 489-F, P.P.C. vide F.I.R. No. 439 dated 3-12-2012 and therefore the registration of second F.I.R. is unwarranted under the law as no person can be booked and prosecuted twice for the same offence and transaction. He lastly contended that the offence entails a maximum punishment of three years and, therefore, the case does not fall within the restrictive clause of section 497 Cr.P.C. He relied upon 2012 SCMR 573, PLJ 2012 Supreme Court 776 and 2010 MLD 1063.

4. As against the above, the learned counsel for the complainant and learned A.A.-G. opposed the plea of bail raised by and on behalf of the petitioner. Reliance was placed on 2012 PCr.LJ 1956.

5. I have heard each of the counsel for the parties and gone through the record of the case.

6. Perusal of the record of the case reveals that during pendency of a bail before arrest matter under section 489-F P.P.C. in the court of learned Additional Sessions Judge-V, D.I.Khan the petitioner entered into a compromise with the complainant by issuing him two cheques, one for Rs.15,00,000 and an other for Rs. 1,78,00,

000. The former cheque was passed for payment on its presentation to the bank while the later was dishonoured for insufficient amount in the account of the drawer. This dishonouring of the cheque prima facie establishes a fact that the petitioner has committed an offence under section 489-F P.P.C. Contention of the learned counsel for the petitioner that the matter agitated by the complainant is of a civil nature has no force in it as undoubtedly the cheque of Rs.1,78,00,000 was issued by the petitioner to the complainant which was later on dishonoured on its presentation to the concerned bank. There is no material on the file which could remotely suggest and indicate that the matter is out of the ambit of section 489-F P.P.C. and is of a civil nature. Regarding the submission raised at the bar by the learned counsel for the petitioner that the subject matter of the present F.I.R. has already been covered through F.I.R. No. 439 dated 3-12-2012 and, therefore the present F.I.R. is hit by the principle that no person should be punished and prosecuted with twice for the same offence and act, suffice it to say that the subsequent F.I.R. is the outcome of issuance of second cheque of Rs. 1,78,00,000 which is an independent and separate act and can not be mixed up with an earlier act.

7. True that the offence under section 489-F, P.P.C. is punishable upto a maximum period of three years and the same does not fall within the restrictive clause of section 497 Cr.P.C. and it is also true that in cases which do not come within the restrictive clause of section ibid, grant of bail is a rule while refusal is an exception. On the touchstone of the above and perusal of case record, this court found an exception to refuse bail to the petitioner and the exception is that the petitioner did not honour his commitment which he had made with the complainant before the court of learned Additional Sessions Judge-V, D.I.Khan to pay the complainant the amount of Rs. 1,78,00,000 rather he deceived the court by issuing a cheque to the complainant knowing well that there is lying no amount in his account. This attitude and act of the petitioner is sufficient to bring his case within an exception justifying refusal of bail to him.

8. For the aforesaid reasons this court is of the view that though the case does not come within the restrictive clause of section 497, Cr.P.C. but for his conduct and showing direspect to his commitment made before a competent court of law which had confirmed his bail before arrest on the strength of the cheque which was later on dishonoured, the petitioner has no right to be released on bail. Therefore, the instant bail petition is dismissed. HBT/516/P Bail refused.