Mehmood Pasha vs State etc.

Criminal Misc.No.5620-B of 2014

Mehmood Pasha The State etc.

22.05.2014 Hafiz Muhammad Yusuf, Advocate with petitioner. Mr.Iftikhar ul Haq Chaudhary, APG with Abdul Rasheed, ASI.

Sheikh Irfan Akram, Advocate for complainant.

The petitioner seeks pre arrest bail in case FIR No.467 dated 05.11.2013 under section 489-F PPC Police Station, Sajid Shaheed, District, Sargodha.

2.Briefly the allegation against the petitioner in the FIR is that he issued a dud cheque of Rs.40,01,161/- in favour of complainant which was dishonoured on its presentation before the concerned bank, hence, FIR in hand.

3.The learned counsel for the petitioner has contended that petitioner has been falsely roped in this case with malice; further adds that FIR No.467 is counterblast to that of one, lodged by the petitioner against the complainant; that offence does not fall within the ambit of prohibitory clause of Section 497 of Cr.P.C. hence, petitioner is entitled to the concession of bail.

4.The learned Law Officer assisted by the learned counsel for the complainant has vehemently opposed the petition by arguing that sufficient material is available on record which connects the petitioner with the commission of offence alleged against him, as

cheque in question belongs to the account of petitioner which was dishonoured and same was duly signed by him, therefore, petitioner is not entitled to the relief as claimed for.

5.Arguments heard and record perused.

6.Admittedly the petitioner is named in the FIR with specific allegation of issuing cheuqe valuing Rs.40,01,161/- which was dishonoured by the concerned bank on its presentation due to insufficient funds. Undoubtedly, petitioner and complainant were business partners and a money dispute was arisen between them due to which, entire dispute was referred to the arbitrator, who was appointed with the mutual consent of the parties and blank cheque was handed over to the arbitrator by the petitioner. The arbitrator announced exparte award on 10.09.2013 with the direction to the petitioner to pay Rs.40,01,161/- to Tariq Mehmood (complainant). The complainant after announcement of award, filed a petition under Sections 14 & 17 of the Arbitration Act before the learned Civil Judge, Sargodha on 07.11.2013 wherein the complainant did not mention that petitioner issued the cheque in question to the complainant after announcement of award by the arbitrator. It is also an admitted fact that alleged cheque, subject matter of FIR was handed over to the arbitrator at the time of his appointment and not to the complainant. Through petition under Sections 14 & 17 of the Arbitration Act, complainant made prayer before the court for making the award Rule of Court and also for issuance of decree of Rs.40,01,161/- which shows that at the time of filing petition under Sections 14 & 17 of the Arbitration Act, alleged cheque was not with complainant. The alleged

cheque was handed over to the arbitrator in order to resolve the matter, which was further handed over by the arbitrator to the complainant. Malafide is apparent on the part of complainant as on one hand, complainant is filing petition under Sections 14 & 17 of the Arbitration Act for the decree of Rs.40,01,161/- and for making award as Rule of Court whereas on the other hand, he lodged a criminal case by not mentioning that cheque in question was not issued by the petitioner to him (complainant), as same was handed over by the arbitrator to the complainant. The question that whether the alleged cheque, subject matter of FIR was handed over to the complainant by the petitioner, as alleged in the FIR or same was handed over to the complainant by the arbitrator, would be determined by the learned trial court after recording of evidence. The Hon’ble Apex Court in case titled “Mian Allah Ditta v. The State and others” (2013 SCMR 51) has held as under:- “Every transaction where a cheque is dishonored may not constitute an offence. The foundational elements to constitute under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfillment of an obligation and lastly that the cheque in question is dishonored.

“In the instant case, prima facie, the circumstances indicate that the cheque in question was not issued towards repayment of some outstanding loan or fulfillment of an existing obligation but instead it had been issued to meet a possible future obligation if determined as a result of some other exercise. That being so, one of the foundational elements of Section 489-F, P.P.C. is prima facie missing.”

Therefore, malafide on the part of complainant is crystal clear and sending the petitioner behind the bars would not serve any useful purpose for the prosecution.

7.For the reasons supra, the petition is accepted and pre-arrest bail already granted to the petitioner vide order dated 25.04.2014 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of the learned trial court.

(Aalia Neelum) Judge

Approved for reporting.

A.S.Khan .