2011 SCMR 1614 (PLP)

ASIF SAEED KHAN KHOSA, J.

Through this petition Shahid Imran petitioner has sought leave to appeal against the order dated 15-6-2011 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 2222-CB of 2011 whereby pre-arrest bail allowed to the petitioner by the learned Additional Sessions Judge, Malikwal, District Mandi Baha-ud-Din, on 22-12-2010 in case F.I.R. No. 383 registered at Police Station Gojra, District Mandi Baha-ud-Din on 29-9-2010 in respect of offences under sections 406/506, P.P.C. was cancelled.

2. We have heard the learned counsel for the petitioner, the complainant in person and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the record of this case with their assistance.

3. According to the prosecution a sum of Rs. 30,00,000 had fraudulently been obtained by the petitioner from the complainant on the pretext that the petitioner wanted to set up a school of which the complainant, a retired headmaster, was to be appointed as its principal and for the said purpose the complainant was to invest a sum of Rs.30,00,

000. It has been alleged in the F.I.R. that after obtaining that amount from the complainant the petitioner had neither set up any school nor had returned the above mentioned sum of money to the complainant and he had instead threatened the complainant with dire consequences. A perusal of the F.I.R. registered in this case clearly shows that the complainant had given the above mentioned sum of money to the petitioner by way of an investment in a business venture and not by way of entrustment. The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or property is to be retained and preserved for its return to the giver and the same is never meant to be utilized for any other purpose. Recognition of this distinction stands clearly reflected in many cases decided by different courts in the Indo-Pak sub-continent and a reference in this respect may be to the cases of State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700), Punjab National Bank and others v. Surendra Prasad Sinha (1994 PSC (Crl) 768), Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900), Ghulam Ali v. Javid and another (1989 PCr.LJ 507), Nga Po Seik v. Emperor (1917 Indian Cases 824) and Kornai Lal Dutta v. The State (AIR 1951 Cal 206). These precedent cases clearly show that a mere breach of a promise, agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in section 405, P.P.C. and such a breach is not synonymous with criminal breach of trust without there being a clear element of entrustment therein which entrustment has been violated. Looked at from this perspective the allegation levelled against the petitioner regarding commission of an offence under section 406, P.P.C. surely calls for further probe at this stage. As regards the offence under section 506, P.P.C. suffice it to observe for the present purposes that the complainant had levelled a bald allegation in that regard in the F.I.R. and no supporting evidence in that respect has so far been produced by him before the investigating officer.

4. It has pertinently been noticed by us that the learned Judge-in-Chamber of the Lahore High Court, Lahore had cancelled the petitioner's bail granted to him earlier by the learned Additional Sessions Judge, Malikwal, District Mandi Baha-ud-Din without appreciating that considerations for grant of bail and those for its cancellation are entirely different. No allegation had been levelled against the petitioner regarding any misuse or abuse of the concession of bail by him and even today the complainant has not been able to level any such allegation against the petitioner. It had also not been appreciated by the learned Judge-in-Chamber of the Lahore High Court, Lahore that the investigation of this case had already been finalized and a Challan had been submitted before the learned trial Court and at such a stage no useful purpose was likely to be served by cancelling the petitioner's bail. It is trite that bail ought not to be cancelled merely for wreaking vengeance,of the-complainant party.

5. Adverting to the question of mala fide on the part of the complainant party we have noticed, and the same has been confirmed by the investigating officer present before the Court with the record, that so far the complainant has failed to produce any evidence whatsoever before him regarding payment of any money to the petitioner by way of either entrustment or investment. The investigating officer has categorically stated before us that after lodging the F.I.R. the complainant has failed to join the investigation and he has never appeared before him ever since. This information supplied by the investigating officer has provided meat and substance to the assertion of the learned counsel for the petitioner regarding mala fide implication of the petitioner by the complainant in the present criminal case. The complainant has maintained that the sum of money given by him to the petitioner is yet to be recovered and, thus, the petitioner may not be admitted to pre-arrest bail but we may observe in this context that, as already mentioned above, so far there is no proof available on the record of this case to even prima facie establish that the complainant had eve' given any sum of money to the petitioner and even otherwise any such money given to the petitioner, if at all, was not recognizable with reference to denomination of the currency notes or their numbers and thus, the money likely to be recovered from the petitioner's custody may never stand connected with the money allegedly paid by the complainant to him. In these circumstances we have not felt persuaded to deprive the petitioner of his liberty for recovery of an amount of money which may not stand connected with the amount in issue and where such recovery may remain legally inconsequential.

6. For what has been discussed above this petition is converted into an appeal and the same is allowed and, resultantly, the petitioner is admitted to pre-arrest bail subject to furnishing bail bond in the sum of Rs. 1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court within a period of two weeks from today. M.H./S-38/SC Pre-arrest bail allowed.