2010 PLP 3206 (YLR)

UMAR ATA BANDIAL, J.

This petition is filed against the order dated 9-4-2009 passed by the learned Additional Sessions Judge, Lahore declining grant of pre-arrest bail to the petitioner in case F.I.R. No.12 of 2009 dated 5-1-2009 registered under section 489-F, P.P.C. at Police Station, Civil Lines, Lahore and seeks pre-arrest bail. It is alleged that the complainant was the broker for the petitioner who is an investor on the stock exchange. The petitioner had issued him a cheque of Rs.2.0 million dated 29-8-2008 in order to cover for loss differential in value of invested shares of the petitioner. Such a loss was sustained by the complainant whereupon he presented the afore-noted cheque of Rs.2.0 million in the bank which was dishonoured on 15-12-2008.

2. The execution of the cheque is not denied, however, the liability under the cheque is denied by the petitioner. The petitioner has filed a claim against the complainant on 29-12-2008 which is pending before the Arbitration Council of the Lahore Stock Exchange. It is claimed that the petitioner is not short of funds, did not issue the cheque dishonestly but denies obligation to discharge the cheque on account of a genuine dispute with the complainant. Consequently, the learned counsel for the petitioner is candid in saying that the petitioner deliberately depleted the funds in the account upon which the cheque was drawn.

3. It is apparent that the cheque was not issued to meet any settled liability between the parties or to repay a loan. It was made to secure a potential claim of loss that may be raised by the complainant. There is a commercial dispute between the parties on such a claim by the complainant which is pending before a competent forum. The petitioner is not short of funds as he has deposited Rs. 1.0 million in cash and provided his personal home in Cavalry Ground, Lahore as security for the surety bond to cover the balance amount of Rs.1.0 million under the dishonoured cheque. Consequently, the only condition for payment is justification of the complainant's claim.

4. Learned DPG opposes the petition on the ground that the execution of the cheque is admitted and so also is its dishonour. In these circumstances, no case for bail before arrest is made out. Learned senior counsel for the complainant is busy before another learned Court. His colleague adopts the stand taken by the learned DPG.

5. From the foregoing facts it is obvious that the dishonoured cheque was not issued dishonestly nor to repay a loan but to cover a potential uncertain liability. The commission of the alleged offence by the petitioner requires inquiry. The entire amount of the dishonoured cheque is fully secured and there is a pending commercial dispute between the parties on the liability under the said cheque, it is appropriate that the coercive arm of the law should await the outcome of that commercial dispute rather than harassing the petitioner in anticipation. Reliance is placed on Iftikhar Akbar v. State (2008 MLD 159) Resultantly, this petition is allowed and the pre-arrest bail already granted to the petitioner vide order dated 14-4-2009 is hereby confirmed subject to the condition already imposed namely deposit of amount of Rs.1.0 million with the Deputy Registrar (Judicial) of this Court and for surety bond for another Rs.1.0 million against the petitioner's own unencumbered urban property of Lahore to be furnished to the satisfaction of the learned trial Court. The petitioner is directed to join the investigation in the meanwhile. Pre-arrest bail confirmed. H.B.T./M-562/L Bail conferred.