Imran Khan Orakazi vs State etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

BA No. 356-P/2016.

JUDGMENT

Date of hearing. 22.3.2016.

Petitioner (Imran Khan Orakzai) By Mr. Muhammad Inam Khan Yousafzai, Advocate.

State: By Syed Sikandar Hayat Shah, AAG.

Complainant. By Mr. Zia-ur-Rehman Tajik, Advocate.

QAISER RASHID KHAN, J. The petitioner

seeks bail in case FIR No. 551 dated 1.10.2015 registered under section 489-F PPC Police Station West Cantt Peshawar after the said relief was declined to him by the learned Additional Sessions Judge-IX, Peshawar on 1.2.2016.

2.Allegations against the accused-petitioner are that he had given a cheque dated 15.08.2015 for Rs.9467000/- favouring the complainant which was dishonoured, hence the FIR ibid.

Arguments heard and record perused.

3.In the present case, the complainant submitted a written report to the local police alleging to have advanced an amount of Rs.9467000/- to the accused- petitioner as loan for some business and the latter had committed to return the same by 15.8.2015 and by way of guarantee issued cheque No.32620372 dated 15.8.2015 encashable at Standard Chartered Bank Peshawar and since the petitioner failed to pay the said amount on the due date and the persistent requests of the complainant thereafter, therefore, the latter presented the cheque at the concerned bank but the same was not honoured due to insufficient funds in the account of the complainant. Thereafter, the complainant served him with a legal notice on 10.9.2015 but to no avail.

6.For to constitute an offence under section 489-F PPC, the following ingredients have to be there:

i)Cheque issued with dishonest intention.

ii)Towards repayment of a loan or fulfillment of an obligation and

(iii)The cheque is dishonoured on presentation.

7.Reverting back to the present case, the cheque for a huge amount of Rs.9467000/- was issued by the

petitioner on 15.8.2015 with the full knowledge that sufficient amount is not available in his account to honour the cheque and thus there was prima facie the element of dishonesty on the part of the accused- petitioner. Secondly, as appears from the FIR, the said amount was advanced to the accused-petitioner as loan for some business purpose and thus the cheque was obviously issued towards the repayment or for that matter for the fulfillment of his obligation towards the complainant and that the cheque was finally dishonoured at the bank’s counter is now part of the record of the case. Thus on all fours, the provisions of section 489-F PPC are squarely attracted in the present case. Moreover, the complainant cannot be bound down to seek his remedy by approaching the civil court through a recovery suit when there is no legal embargo on him not to press into service the penal provisions against the delinquent through the registration of an FIR.

The mere fact that the offence for which the accused- petitioner is charged does not attract the prohibitory limb of section 497 Cr.P.C cannot per se hold him

entitled to the concession of bail. Grant of bail in such like cases is not a rule of universal application as each case merits decision on the basis of its own facts and circumstances. Reliance in this respect may advantageously be placed on 2002 SCMR 442 (Muhammad Siddique v. Imtiaz Begum and 2 others) and 2009 SCMR 174 (Shameel Ahmed v. The State).

6.Of late the issuance of cheques which are in turn dishonoured has taken our society by storm so much so that such instrument is looked upon by the beneficiary with a degree of doubt and skepticism till it is honoured by the concerned bank. Such practice has also eroded the mutual trust of the general public and there are instances when people shy away from accepting cheques even from trustworthy persons. Moreover, no one is supposed to commit the financial murder of another member of the society. Thus taking a tentative assessment of the available record, the accused- petitioner being prima facie linked with the commission of the offence is held disentitled to the concession of bail. Resultantly, this bail petition is dismissed.

Before parting with this order, it is directed that any observations recorded in this order, being purely tentative in nature, should in no way prejudice the proceedings before the learned trial Court where the case be decided on its own merits after recording evidence.

Announced:

22.3.2016. JUDGE

*Qaseem*