Raza Khan vs M.Abid Khan

2014 Y L R 90

[Peshawar]

Before Abdul Latif Khan, J

RAZA KHAN---Petitioner

Versus

M. ABID KHAN and another---Respondents

Criminal Miscellaneous B.C.A. No.170 of 2013, decided on 12th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, cancellation of---Petition for---Cheque in question was dishonoured three days after its issuance, but complainant waited for about 7/8 months and lodged report after more than 8 months from dishonouring of the cheque, and no plausible explanation had been furnished for such delay--- Punishment for the offence with which accused was charged, did not fall within prohibitory clause of S.497, Cr.P.C., where bail was a rule and refusal an exception---Accused had not denied the issuance of cheque, but had stated that same was issued for security purpose--- Whether the handing over of a cheque for security purpose, would constitute an offence under S.489-F, P.P.C., or not was to be seen---Element of dishonesty to constitute an offence under S.489-F, P.P.C. was the basic requirement in the case where cheque had been given for the adjustment/repayment of loan, and not in case where it was given as security---Cheque dishonoured in every eventuality could not constitute an offence under S.489-F, P.P.C.

Mian Allah Ditta's case 2013 SCMR 51 rel.

Muhammad Ghazanfar Ali for Petitioner.

Muhammad Waheed Anjum for Respondent No.1.

Khan Wali Khan Mahsud Addl: A.G. for the State.

Date of hearing: 12th July, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Aggrieved of the order dated 15-6-2013 passed by the learned Additional Sessions Judge-III, D.I.Khan vide which bail was granted to the accused/respondent No.1 in case F.I.R. No.321 dated 24-5-2013 registered under section 489-F, P.P.C. at Police Station Cantt: D.I.Khan, the petitioner has moved the instant petition for cancellation of the same.

2.Learned counsel for the petitioner contended that the cheque in question was issued to the petitioner by the respondent No.1 who was having account in Habib Bank Limited and this per se is sufficient to connect the respondent with the offence charged with and was not entitled to the concession of bail more particularly when he has not denied the issuance of cheque.

3.Conversely, the learned counsel for the accused/respondent supported the impugned order of granting bail and contended that the cheque was issued for security purpose and not for encashment so as to attract registration of case under section 489-F, P.P.C. He argued that the cheque was allegedly dishonourerd on 25-9-2012 but even then the complainant lodged the report on 25-5-2013, with a delay of 7/8 months which has not been explained.

4.I have given my deep thought to the arguments of learned counsel for the parties and perused the available record.

5.Perusal of the record reveals that the cheque in question was issued on 22-9-2012 and dishonoured on 25-9-2012 but the complainant waited for about 7/8 months and lodged the report on 25-5-2013 for which he has furnished no plausible explanation. Punishment for the offence with which the accused/respondent is charged, does not fall within prohibitory clause of section 497, Cr.P.C, where bail is a rule and refusal an exception.

6.Moreover, the respondent has not denied the issuance of cheque but stated that the same was issued for security purpose. It is also to be seen as to whether the handing over of a cheque for security purpose would constitute an offence under section 489-F, P.P.C. or not.

7.In Mian Allah Ditta's case (2013 SCMR 51), the honourable Supreme Court of Pakistan observed the following:--

"Having heard learned counsel for the parties and learned Law Officer at some length and having gone through the record, we find that the agreement dated 17-8-2011 to which reference has been made by complainant's learned counsel is of a prior date which was overtaken by a subsequent arbitration accord dated 24-11-2011 and the cheque dated 20-7-2012 ex facie appears to be connected with the said subsequent arbitration accord. This is also borne out from the finding in investigation carried out by the police. According to the Investigating Officer, the cheque issued amounting to Rs.2500,000 was by way of security, rather than for the discharge of liability to the tune of the amount mentioned in the said cheque. He further added that in terms of the award given by the Arbitrator, petitioner owes only Rs.6,50,000. Be that as it may, we would not like to go into depth of the issue lest it may prejudice anyone during investigation or trial. But the case in hand begs a question as to what constitutes an offence under section 489-F, P.P.C. Every transaction where a cheque is dishonored may not constitute an offence. The foundational elements to constitute an offence under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfilment of an obligation and lastly that the cheque in question is dishonoured".

8.The element of dishonesty to constitute an offence under section 489-F, P.P.C. is the basic requirement in cases where cheque has been given for the adjustment/repayment of loan and not in cases where it is given as security. Cheque dishonored in every eventuality may not constitute an offence under section 489-F, P.P.C. I would not probe deeply into the matter, lest it may prejudice the case of any party in the trial, but the prime point to be considered in cases of section 489-F, P.P.C., constituting offence rests upon dishonest intent, towards repayment and the cheque returned, as bounced.

9.For the foregoing reasons, the instant petition being devoid of merit is hereby dismissed.

HBT/477/P Petition dismissed.