Dishonestly issuing cheque

Admittedly the applicant was all along on bail granted to him by First Appellate Court on 23.12.2020; however, he remained fugitive for about 13 months and again surrendered before the Court below by filing anticipatory bail application

Since the applicant was granted bail by first Appellate Court on merits and later he after remaining an absconder for 13 months surrendered voluntarily before the Court below as well as High Court, thereby had put himself completely upon the mercy of Court

Such conduct on the part of applicant showed that he had no wrong intention to abscond away

After rejoining the trial, applicant had been appearing and facing it without negligence, resultantly, the trial had been concluded and it was at the verge of conclusion viz. recording statement of the accused in terms of S.342 Cr.P.C.

No complaint with regard to misuse of the concession of bail extended to applicant had been brought on record by the prosecution or the complainant through which it could be deduced that applicant was not entitled for extraordinary relief

Mere absconsion was no ground to intercept the bail to an accused if otherwise accused had got a good case on merits

As far as merits of the case were concerned, applicant was granted post arrest bail by the first Appellate Court on merits and later due to his absconsion it was recalled

In case, applicant was put behind the bars, tomorrow again he would be released on bail, therefore, no technical or legal purpose would be served by putting him in jail

In the present case, applicant was all along on bail granted to him by the first Appellate Court; besides, he was not arrested or forced to surrender but he had surrendered voluntarily by putting himself completely upon mercy of the Court; hence, he deserved extraordinary relief of bail

Every accused would be presumed to be blue eyed of the law until and unless he might be found guilty of the charge and law could not be stretched upon in favour of the prosecution particularly at bail stage

Since, the applicant was granted bail on merits and later it was recalled due to his absconsion; hence, looking at his conduct, his case required further enquiry

Bail application was allowed, in circumstances.

Accused-respondent issued seven cheques against an outstanding amount of purchase of thread, which were dishonoured when presented before the bank

Complainant had claimed that he sold out Metallic Yarn to the respondent No. 1/accused worth of Rs.21,73,000/-and against that the latter issued him seven cheques, which were dishonored on presentation

However, the complainant failed to produce on record any evidence to establish that he had in fact supplied Metallic Yarn to the respondent No.1/accused to justify issuance of the alleged cheques towards fulfillment of an obligation under the sale transaction

Complainant admitted in his cross-examination that he had not produced any proof regarding supply of said products to the respondent No.1 accused

Besides, the Investigating Officer had also admitted in his deposition that the complainant did not hand over to him any document to show business transaction between him and the respondent No. 1/accused

Criminal acquittal appeal, stood dismissed, accordingly.

Accused-respondent issued seven cheques against an outstanding amount of purchase of thread, which were dishonoured when presented before the bank

It was the plea of the respondent No.1/accused, as recorded in his statement on oath under S.342, Cr.P.C., that he had business terms with the appellant/complainant and he used to obtain Metallic Thread from him on credit basis and he had issued cheques in advance upon the condition that whenever the appellant/complainant would supply material to him, the said cheques would be encashed; that however, the appellant/complainant instead of supplying the requisite material to him, fraudulently presented the cheques referred to in FIR for encashment and then he lodged the FIR against him

Heavy burden laid upon the appellant/complainant to prove that the subject cheques were issued by the respondent/accused against the alleged supply of Metallic Yarn to respondent/accused for fulfillment of an obligation, which he could have proved easily by producing requisite record of his supply, but he failed to do so

Hence, the Trial Court rightly recorded acquittal of the respondents/accused by extending them benefit of doubt

Material on record approved the assessment of the trial Court

Prosecution had failed to bring home guilt of respondents/accused beyond reasonable doubt

Criminal acquittal appeal, therefore, stood dismissed, accordingly.

One of the basic ingredients of the offence contemplated by S. 489-F, P.P.C. is that a person must have drawn and issued the cheque himself in respect of an account maintained by him in a bank and that cheque is dishonoured

Person liable in respect of said penal provision is only the person who has drawn the cheque.

Term "whoever" appearing at the start of S. 489-F, P.P.C. is important and it is obvious that unless and until an application for registration of a case is filed against a person who is the account holder and who has himself issued a cheque which has been dishonoured, no criminal liability is attracted.

Accused gave the highest bid and handed down a cheque amounting to Rs. 1,76,25000/- as 25% of hammer-down amount, which was presented through banking channel and same was bounced

Nothing was on the record to show that prior to lodgement of FIR, accused had withdrawn his offer or preferred any request before the executing Court for his inability to purchase the property

Cheque was given by the accused to a Court as a successful bidder, as such it was in respect of a future obligation created in respect of the auction proceeding in which he had participated

Cheque having been given as 25% of auction price offered by him, could not be negotiated and accused never contacted the Presiding Officer or the Court staff regarding the same, which attracted dishonesty on the part of accused

Neither the FIR could be termed as false or fabricated nor there was any question of malice and ulterior motive, as such no ground of extending extraordinary relief was available in favour of accused

Pre-arrest bail application was dismissed, in circumstances.

Accused-petitioner claimed that he was psychological patient and that the cheque in question had fraudulently been obtained from him and he had already paid Rs. 2.7 million to the complainant as against Rs.2.4 million due against him

Accused-petitioner claimed that the said record could not be placed on the file as he was in jail and had no access to the same, being handicapped

Application under S.428 Cr.P.C. was submitted to the appellate court, but was dismissed

Validity

Main stress of the petitioner was on his mental ill health, which, indeed, had never been pleaded as a defence either in the criminal case or in the civil suit filed by complainant against the petitioner for the recovery of Rs.6.8 million

During his statement recorded under S.342, Cr.P.C., petitioner was specifically asked whether he wanted to produce any defence evidence and his answer was no

Petitioner raised the said plea of additional evidence after his conviction in the case that was apparently an after-thought

Accused-petitioner had refused to avail the opportunity of recording defence evidence, so as to invoke the jurisdiction of the appellate court for taking further evidence

Earlier recording of evidence by a party would be the essential pre-requisite for recording of further evidence, which was non-existent in the present case

Petitioner did not avail the opportunity of recording his defence evidence during trial proceedings

Revision petition was dismissed in circumstances.

Complainant contended that accused was not liable for concession of bail as he had been involved in many cases of similar nature

Section 489-F, P.P.C. provided maximum punishment of three years therefore, the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.

Accused was behind the bars for sufficient time, investigation was complete, charge had been framed and accused was no more required for further investigation

Prosecution though had placed copies of criminal cases registered against accused but the record was silent as to whether the accused had been convicted in any of said cases

Admittedly, cheques in question had been issued to complainant in respect of outstanding amount and from the joint property business between the parties, the matter prima facie appeared to be of civil in nature

Accused was admitted to bail, in circumstances.

Mere fact that the offence for which the accused was charged did not attract the prohibitory clause of S.497, Cr.P.C. could not per se make him entitled to the concession of bail

Grant of bail in such like cases was not a rule of universal application as each case merited decision on the basis of its own facts and circumstances

Record revealed that the accused was a habitual offender of committing such like offences and was involved in number of cases

Accused prima facie was linked with commission of offence thus was disentitled to the concession of bail

Bail was refused, in circumstances.

Petitioner stood surety for the accused involved in a case registered under S. 489-F, P.P.C. in the sum of Rs. 5,00,000/- and deposited Defense Saving Certificates of the like amount on behalf of the accused when he was granted bail

Held, standing surety for someone was an act of benevolence until it was established that the surety had got the accused released on bail for ulterior motives

Court granted, pre-arrest bail to the accused, he was present in the Court on given date but at 10:30 he left the Court due to illness after giving application for adjournment to the Reader

Court adjourned the case for the next day and on that date of hearing he was absent and the Court recalled his pre-arrest bail order

Accused was absent from the Court for only one day and Court, without giving any warning/notice to surety, cancelled the bail order the very next day

Surety was cancelled in a hurried manner as the surety was not to be treated harshly nor punished severely without having been there extraordinary circumstances calling for full forfeiture of surety bond

High Court set aside the impugned order with the direction that minor penalty commensurating the circumstances be imposed by the Trial Court

Application of the surety was disposed of accordingly.

Interference would be declined with the findings of acquittal, unless it was proved that the acquittal order was shocking, ridiculous, artificial or based on misreading and non-reading of evidence

In the present case, the appellant had failed to prove any such defect

Appeal against acquittal was dismissed in circumstances.

Prosecution case was that accused in consideration of sale transaction of buffaloes with connivance of his co-accused/brother, since acquitted, had issued four cheques of different amounts, which were bounced on presentation

Record showed that cheques in question were not presented within due date

Witness/Bank representative stated that cheques were produced after the lapse of two years whereas the maximum period for presentation of the cheques was six months

Iqrarnama was executed between the parties, at the time of sale transaction, but cheques in question were not mentioned therein

Admittedly, there was civil litigation between the parties, initiated by the complainant

False involvement of accused-respondent along with his family members to settle down the civil liability, if any, by filing criminal case could not be ruled out in circumstances

Prosecution failed to prove the guilt of the respondent to the hilt because presenting cheques after the date of its expiry showed mala fide intention only to drag the respondent along with his family members in criminal case

Appeal against acquittal was dismissed in circumstances.

Accused issued cheque, which was dishonored by the Bank, which prima facie had established that accused had committed offence under S. 489-F, P.P.C.

Accused had not only been nominated in the FIR for commission of offence

Bail was refused, in circumstances.

Offence though did not fall in the ambit of prohibitory clause of S. 497, Cr.P.C. but the circumstances of the case showed gravity of the matter, which not only affected an individual but also spoiled his economic and social life

Bail was refused.

Likelihood of absconsion, apprehension of tampering with the prosecution evidence by accused, danger of repetition of offence existed

Accused was previous convict and hardened criminal

Bail was refused in circumstances.

Petitioner had lodged the FIR against the dishonouring of the cheque against the respondent/accused, who had filed the suit for specific performance of the agreement against the petitioner

No provision of law existed which provided that both the cases could not have been put to trial at the same time

Courts below, therefore, had rightly disallowed the application for sine die adjournment of the criminal case

Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Cheque for a huge amount was issued by accused with the full knowledge that sufficient amount was not available in his account to honour the cheque

Prima facie, element of dishonesty was established on the part of accused

Said amount was advanced to accused as loan for some business

Cheque in question was issued by accused towards the repayment or for that matter, the fulfilment of his obligation towards the complainant; and that cheque was dishonoured

Provisions of S.489-F, P.P.C., were squarely attracted in the case

Complainant, could not be bound down to seek his remedy by approaching the civil court, through a recovery suit, when there was no legal embargo on him to press into service the penal provisions against delinquent, through registration of an FIR

Mere fact that the offence for which accused was charged, did not attract the prohibitory limb of S.497, Cr.P.C., could not per se hold him entitled to the concession of bail

Grant of bail, in such like cases, was not a rule of universal application; case merited decision on the basis of its own facts and circumstances

Accused, prima facie, being linked with commission of the offence, was held disentitled to the concession of bail

Bail petition, was dismissed, in circumstances.

To constitute offence under S.489-F, P.P.C., ingredients of offence were that cheque was issued with dishonest intention; towards repayment of a loan or fulfilment of an obligation and cheque was dishonoured on presentation.

Illustrated.

Initial burden of proving an offence under S.489-F, P.P.C. that cheque was not dishonoured by accused's fault, but the bank was at fault, was against the basic concept of criminal law according to which an accused was considered innocent, unless he was proved guilty of charge

Placing of initial burden on accused to prove that cheque was not dishonoured by his fault in an offence under S.489-F, P.P.C., was open discrimination in terms of Art.25 the of Constitution of Pakistan; and Art.17 of Gilgit-Baltistan (Empowerment and Self-Governance)Order, 2009, wherein it was provided that all were equal before law and had equal protection of law

Burden of proving dishonest issue of cheque was on the prosecution; and at the same time the burden of proving that cheque was not dishonourned for the fault of accused, bat it was fault of bank, was on accused, which was against the basic principles of criminal law that prosecution beyond all reasonable doubts must prove accused guilty of charge.

Offence under S.489-F, P.P.C. was created under Criminal Law (Amendment) Ordinance, 2002 issued on 25-10-2002 in pursuance of the Proclamation of Emergency in the Country on 12th October, 1999 which was validated by the Supreme Court and later was also given protection by Seventeenth Amendment in the Constitution and also was saved under Eighteenth Amendment

Ordinance issued by the President under Art.89 of the Constitution of Pakistan on expiry of period of four months, would be considered as a valid law even without placing the same before the Parliament for approval as it had been given constitutional protection under Seventeenth and Eighteenth Amendment in the Constitution of Pakistan

If S.489-F, P.P.C. was not a valid law and was no more part of statute in Pakistan, it could have no legal force in Gilgit-Baltistan

Question relating to the validity and constitutionality of provision of S. 489-F, P.P.C., essentially required decision along with the question whether on the basis of dishonourned cheque, prosecution under S.420, P.P.C. was justified

First question was a pure question of law, whereas the second question was a mixed question of law and fact which must be decided by the Trial Court.