2013 PLP 538 (YLR)

QAISER RASHID KHAN, J.

Through the instant petition, the petitioner Malik Kashif son of Malik Khurshid, seeks post-arrest bail in case F.I.R. No.457 dated 12-10-2011 under section 489, P.P.C., registered in Police Station Saddar Mansehra.

2. The brief and essential facts leading to the present petition are that complainant Mushtaq Ahmed submitted an application to the District Police Officer, Mansehra for proceeding against the petitioner as an amount of Rs.10,20,000 of the respondent was due against the petitioner, who gave a Cheque No.0027985 dated 26-3-2011 for an amount of Rs.100,000 to the respondent, which was dishonoured, whereupon jirga was held between the parties, an agreement was executed and the petitioner undertook to open an account and to give a cheque to the respondent; that after 20 days the petitioner gave him Cheque No.008075 of Account No.1875-0 for an amount of Rs.10,20,000 of ANBP Attar Shisha Branch; that when the complainant presented the said cheque at the bank, he came to know that the account was in the name of father of the petitioner thereby committing fraud with the respondent and thus he be proceeded against. On the application of the complainant, opinion of District Public Prosecutor was obtained and resultantly the present case was registered against the petitioner and he was arrested. He applied for his release on bail to the Court of Judicial Magistrate, Mansehra, which was accepted on 2-11-2011 and the petitioner was released on bail but the conditions on which the said bail granted were not fulfilled and the complainant submitted an application for cancellation of bail, which was allowed by the learned Judicial Magistrate on 19-1-2012 and the bail granted to the petitioner was recalled. The petitioner again moved an application to the learned Illaqa Judicial Magistrate for the same relief but was declined vide order dated 27-1-2012 and then his application for the grant of bail to the court of learned Additional Sessions Judge-IV, Mansehra too, met the same fate vide order dated 2-2-2012.

3. Learned counsel for the petitioner submitted that the petitioner is innocent and has been falsely implicated in the present case, that purely monetary dispute has been made the subject-matter of criminal proceedings just with a view to pressurize the petitioner; that in respect of the monetary liability and the cheque in question the petitioner has filed a declaratory suit against the respondent as the same was obtained from the petitioner forcibly and lastly argued that the offence for which the petitioner is charged does not fall within the prohibitory clause of section 497 Cr.P.C. and therefore, the peti-tioner is entitled to the concession of bail.

4. On the other hand, learned A.A.-G. assisted by the learned counsel for the complainant opposed the arguments advanced by learned counsel for petitioner and submitted that the petitioner has withheld an amount of over one million of the respondent illegally and with impunity; that despite commitment made with the respondent vide which he was allowed bail by the learned Judicial Magistrate in the earlier round, the petitioner backed out from the same and issued a cheque of the account of his father showing his fraudulent conduct and mens rea; that the petitioner has also defrauded other people and have issued them like manner cheques which too, were dishonoured and he is a habitual offender; that the declaratory suit filed by the petitioner has since been dismissed for non-prosecution and therefore, the petitioner is not entitled to the concession of bail.

5. Arguments of learned counsel for the parties heard and available record perused.

6. Admittedly the petitioner gave a cheque for an amount of 10,20,000 to the respondent though knowing fully well that the cheque in question is of the account of his father. The petitioner has neither denied his signature on the cheque nor the amount mentioned therein but has rather taken a plea that the same was obtained from him forcibly and in this respect he has also filed a declaratory suit. The said arguments stand belied as the declaratory suit was dismissed by the learned trial Court for non-prosecution on 29-2-2012 and in this respect the attested copy is available.

7. Of late issuance of cheque which is in turn dishonoured has become a regular phenomenon which on the one hand is used to defraud the ordinary gullible people and on the other hand is eroding the trust of the people, thus striking at the very fabric of the society. The delinquent cannot take shelter under the plea that the offence does not fall within the prohibitory clause of section 497, Cr.P.C. and thus he is entitled to bail. The said rule is not of universal application and each case has to be examined on its own merits keeping in view facts and circumstances. Reliance in this respect may advantageously be placed on 2009 SCMR

174. The traumatic and psychological effects of a dishonoured cheque can only be felt by the people who become the victims of such incidents. In the case of the petitioner, it is not just the respondent-complainant who is aggrieved but other persons as well who have become the victims of the machinations of the petitioner. Thus taking a tentative account of the material brought on record, I do not subscribe to the arguments of learned counsel for petitioner and this bail petition is accordingly dismissed. As complete challan has already been submitted, therefore, the trial Court is directed to conclude the trial of the case expeditiously but not latter than three months.

7. Before parting with this order it is directed that any observations made in this order are tentative in nature and should not prejudice the proceedings before the learned trial Court, where the case be decided on its merits after recording of evidence. MWA/167/P Bail refused.