Muhammad Tahreem vs The State

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

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Muhammad Tahreem. Vs. The State and another. S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, proceeding proceeding. where necessary.

06 11.02.2022. Mr. Naveed Khalil Chaudhry, Advocate with the petitioner.

Rao Muhammad Riaz Khan, Deputy District Public Prosecutor with Mansoor, SI.

Mr. Nazir Ahmad Chaudhry, Advocate for respondent No.2/complainant.

Through this petition under section 498 Cr.P.C. the petitioner, namely Muhammad Tahreem, seeks pre- arrest bail in case FIR No.445 of 2021 dated 30.11.2021, registered at Police Station Kotwali, District Bahawalpur, in respect of an offence under section 489-F PPC.

2.The allegation against the petitioner, as culled from the evidentiary material produce before the Court, is that he had drawn two cheques of the total value of Rs.7,00,000/- and dishonestly issued the same to the complainant, which both the cheques, on their presentation before the concerned bank authorities, were dishonoured.

3.I have heard the learned counsel for the petitioner, the learned Deputy District Public Prosecutor, the learned counsel appearing on behalf of respondent No.2/complainant and with their able assistance have perused the record.

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4.This is a pre-arrest bail and only tentative assessment of the evidentiary material produced before the Court is to be made at this stage. The unique aspect of the instant case is that both the cheques in dispute had been issued in the name of one Muhammad Afzal Sabri and not Muhammad Javed, the complainant of the case. Now, the provisions of the Negotiable Instruments Act, 1881 (XXVI of 1881) are quite clear with regard to such instruments which have been drawn to be paid to another person than the holder of the same. Section 78 of the Negotiable Instruments Act, 1881 (XXVI of 1881) provides that the payment shall be made on a cheque to the holder of the instrument. The term “Holder of the Instrument” has also been defined in section 8 of The Negotiable Instruments Act, 1881 (XXVI of 1881). Section 8 of The Negotiable Instruments Act, 1881 (XXVI of 1881) defines the holder of the cheque as being “payee” or “indorsee”, which is in possession of it. The term “Payee” has also been defined in section 7 of The Negotiable Instruments Act, 1881 (XXVI of 1881). The term “Payee” is the person named in the instrument to whom or to whose order the money is by the instrument is directed to be paid. The term “Indorsement” has also been defined in section 15 of the Negotiable Instruments Act, 1881 (XXVI of 1881). According to section 15, when a person, otherwise than as such maker, for the purpose of encashing, on the back or face thereof, signs a cheque for the said purpose, he is said to indorse the same and is called the “Indorser”. “Indorsement” can be in blank or in full. It is said to be blank if the indorser signs his name only and it is said to be in full, if the indorser also mentions the name of the person to whom, the payment is to be made. Section 30 of The Negotiable Instruments Act, 1881

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(XXVI of 1881) defines the “Liability of drawer” of the cheque, in this case being the petitioner. With regard to the payment of the cheque, the provisions have been mentioned in sections 126 to 129 of the Negotiable Instruments Act, 1881 (XXVI of 1881). The above- mentioned provisions of the Negotiable Instruments Act, 1881 (XXVI of 1881), are being reproduced for ready reference.

“78. To whom payment could be made.---Subject to the., provisions of section 82, clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.

8."Holder"--- The "holder" of a promissory note, bill of exchange or cheque means the payee or indorsee who is in possession of it or the bearer thereof but does not include a beneficial owner darning through a benamidar.

"Payee."---The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid is called the "payee."

15.Indorsement.--- When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiable, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the "indorser".

16.Indorsement "in blank" and "in full".---(l) If the indorser signs his name only, the indorsement is said to be "in blank", and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indorsement is said to be 'in full", and the person so specified is called the "indorsee" of the instrument.

30.Liability of drawer. --- (1) (a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that it be dishonoured,

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he will compensate the holder or any indorser who is compelled to pay it, and (b) the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawee he will compensate the holder; Provided that due notice of dishonour of the bill or cheque has been given to or received by the drawer as hereinafter provided. (2) The drawee of a bill of exchange is not liable thereon until acceptance in the manner provided by this Act.

126.Payment of cheque crossed generally. Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker.

Payment of cheque crossed specially. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or his agent for collection.

127.Payment of cheque crossed specially more than once. Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.

128.Payment in due course of crossed cheque. Where the banker on whom a crossed cheque is drawn in good faith and without negligence pays it, if crossed generally, to a banker, and if crossed specially, to the banker to whom it is crossed or his agent for collection, being a banker, the banker paying the cheque, and in case such cheque has come to the hands of the payee the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.

129.Payment of crossed cheque out of due course. Any banker paying a cheque crossed generally other wise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.”

Keeping in view the above provisions of the Negotiable Instruments Act, 1881 (XXVI of 1881), which determine

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the liability of a “drawer of the cheque”, the cheques in dispute in this case have been examined. The complainant of the case is not mentioned as either “Payee” or “indorsee” on the said cheques and in this manner, he cannot be said to be the holder of the said cheques in due course because both the cheques have been specifically ordered to being made to Muhammad Afzal Sabri who indeed, is not the complainant of the case. There does not exist any document which shows that the petitioner had specifically indorsed the cheques to be made payable to the complainant of the case or that Muhammad Afzal Sabri had specifically indorsed them to be made payable to the complainant of the case. In this manner, the clauses of the contract which had been executed between the complainant of the case and the Bank with regard to the submission of the cheques for clearing are also very relevant and clear and they require that only those cheques shall be presented for clearing wherein, the person is holder in due course, either as being “Payee” or “Indorsee”, which in this case, the complainant of the case was not. In these circumstances, the reason for the return of the cheques should have been that the complainant was not a holder of the cheques and not as has been given in the Return Unpaid Reasons Forms appended with the record, as issued by the Bank. Considering all the circumstances and facts of the case, the liability of the petitioner for the offence made punishable under section 489-F PPC, which required that the petitioner dishonestly issued the cheques to the complainant of the case, shall remain a moot point between the parties which shall be decided by the learned trial court after the recording of the evidence and keeping in view the above mentioned provisions of the Negotiable Instruments Act, 1881

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(XXVI of 1881). In view of the facts mentioned above, it is also apparent that the remedy for the complainant of the case for retrieving money from the petitioner, lies somewhere else in the law, instead of registration of this case under section 489-F PPC. Moreover, the prosecution case is even otherwise, based on documentary evidence which has already been taken into possession by the Investigating Officer of the case. Even otherwise, the Investigating Officer of the case, present before the Court, submits that he has concluded the investigation of the case and nothing is to be recovered from the possession of the petitioner. The versions of the petitioner as well as the complainant have already been verified by the Investigating Officer. The assertion of the learned counsel for the petitioner that the petitioner has been involved in the occurrence due to mala fide and malicious intent, is an assertion, which cannot be said to be without basis or foundation. Sending the petitioner behind the bars at this stage would cause irreparable loss to his reputation. In this respect, reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following has been enunciated:- “Although for grant of pre-arrest bail one of the pre- conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events hints to that effect are available, the same would validly constitute the element of mala fide.”

5.In view of this, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner namely Muhammad Tahreem by this Court, vide order dated 12.01.2022 is hereby confirmed subject

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to furnishing fresh bail bonds in the sum of Rs.2,00,000/- (Rupees Two Hundred thousand), with two sureties, each in the like amount, to the satisfaction of learned trial Court.

6.It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. The Investigating Officer of the case submits that the investigation of the case is complete, therefore, the S.H.O. concerned is directed to submit the report under section 173 Cr.P.C within the next seven days positively. Furthermore, the learned trial court is directed to conclude the trial of the case expeditiously, preferably, within a period of four months after taking cognizance of the case. If the delay in conclusion of the trial is occasioned by any act of the petitioner or any person acting on his behalf, or the petitioner absents himself from the learned trial court or the petitioner misuses the concession of the bail in any manner, the learned trial court shall be at liberty to cancel the bail of the petitioner, in accordance with the law

(SADIQ MAHMUD KHURRAM)

JUDGE

Approved for Reporting

JUDGE

T.M.Alvi/*