489-F Bail
P L D 2013 Lahore 173
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Accused allegedly issued a cheque to the complainant, which was dishonoured on presentation---Complainant contended that there were five other cases similar to present one registered against the accused, which established the fact that accused was a habitual offender in issuing cheques, and that unless recovery of amount was effected from accused, he was not entitled to be released on bail---Validity---Although different F.I.Rs. had been registered against accused for issuing cheques, which got dishonoured on presentation, but he was not convicted in any one of them---Complainant in a criminal case under S.489-F, P.P.C. could not ask criminal court to effect any recovery of amount involved in the cheque---Accused was released on bail in circumstances.
Shameel Ahmed v. The State 2009 SCMR 174 ref.
(b) Penal Code (XLV of 1860)---
----S. 489-F & Chaps. XVII [Ss.378 to 462] & XVIII [Ss.463 to 489-F]---Dishonestly issuing a cheque---Recovery of cheque amount---Scope---Complainant in a criminal case under S.489-F, P.P.C could not ask a criminal court to effect any recovery of amount involved in the cheque---Cheque amount involved in the offence under S.489-F, P.P.C was never considered as stolen property---Had the same been treated as stolen property, the investigating agency would certainly have been equipped with a power to recover said amount as provided under Chap. XVII, P.P.C---Section 489-F, P.P.C had been inserted in Chap. XVIII, P.P.C, under which only remedy provided for the prosecution was the conviction of accused and no process for recovery could be effected.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail---Cheque issued for a huge amount---Recovery of cheque amount---Complainant opposing grant of bail to accused on the ground that huge amount was involved and recovery was yet to be effected---Police requesting physical remand of accused and cancellation of bail in order to facilitate process of recovery of amount in investigation---Validity---No such process could be allowed to be adopted either by courts dealing with matter of remand or trial of the offence under S.489-F, P.P.C, or the investigating agency to effect recovery.
(d) Penal Code (XLV of 1860)---
----Ss. 489-F & 384---Dishonestly issuing a cheque---Bail---Cheque issued as guarantee/security---Recipient of the cheque using the same to exert pressure on the issuer to force him to surrender to his illegal demands---Such misuse of S.489-F, P.P.C for the purpose of securing money would be termed as extortion.
Malik Saleem Iqbal Awan for Petitioner.
Chaudhary Karamat Ali, Addl. Prosecutor-General for the State with Hamid Ullah ASI.
Ghulam Hussain Malik for the Complainant.
Bashir Abbas Khan for the Complainant in Crl.Misc.No.15931-B of 2012.
P L D 2013 Lahore 173
Before Ibad-ur-Rehman Lodhi, J
ABDUL SATTAR---Petitioner
Versus
THE STATE and another---Respondents
Criminal Miscellaneous Nos.16117-B, 16118-B, 16510-B, 15931-B and 15932-B of 2012, decided on 15th November, 2012.
ORDER
IBAD-UR-REHMAN LODHI, J.---This order shall dispose of the following bail petitions:-
(i) Crl.Misc.No. 16117-B of 2012.
(ii) Crl.Misc.No. 16118-B of 2012.
(iii) Crl.Misc.No. 16510-B of 2012.
(iv) Crl.Misc.No. 15931-B of 2012.
(v) Crl.Misc.No. 15932-B of 2012.
as the same are filed on behalf of one person.
2. In Crl.Misc.No.15931-B of 2012 and Crl.Misc.No.16117-B of 2012, the complainants of the case opposed the concession of bail to the petitioner.
3. The allegation against the petitioner is that he issued a cheque to the complainant, which on presentation was dishonoured and, therefore, a criminal case under section 489-F, P.P.C. was registered against him, and he as arrested on 1-12-2011 in Criminal Miscellaneuos No. 16117-B of 2012.
4. The petition is opposed on the ground that these are five cases of similar nature against the petitioner, which establishes the fact that the petitioner is a habitual offender in issuing cheques, which would subsequently on presentation dishonoured. The learned counsel for the complainant called the petitioner as a record-holder and history sheeter.
He was asked to show any conviction of the petitioner in any such like case, but the response was that yet there is no conviction and only the F.I.Rs. have been lodged against the petitioner by mentioning the amounts involved in the cases.
5. The learned counsel for the complainant attempted to make the case of grave nature and expressed his views that unless the recovery of the amount, in question, is not affected, the petitioner is not entitled to be released on bail.
6. Section 489-F, P.P.C. was originally inserted in Pakistan Penal Code, 1860 by Ordinance LXXII of 1995, providing conviction for counterfeiting or using documents resembling National Prize Bonds or unauthorized sale thereof and while the same was part of the statute, again by virtue of Ordinance LXXXV of 2002, another Section under the same number viz. 489-F of P.P.C. was inserted on 25-10-2002 providing conviction and sentence for the persons guilty of dishonestly issuing a cheque towards repayment of loan or fulfillment of an obligation, which is dishonoured on its presentation. In that newly inserted section 489-F of P.P.C., the maximum relief for the complainant of the case is the conviction of the responsible person and punishment as a result thereof, which may extend to 3 years or with fine or with both. The cheque amount involved in the offence under such section is never considered as a stolen property. Had this been treated as a stolen property, the Investigating Agency would certainly have been equipped with a power to recover the amount also as is provided in Chapter XVII of P.P.C. relating to offences against property. The offence under section 489-F, P.P.C. is not made part of the said Chapter providing the offences and punishments of offences against property, rather in fact the same has been inserted in Chapter XVIII of P.P.C., regarding offences relating to documents and to trade of property marks.
7. In the cases registered under Chapter XVII, the police in case of theft, extortion, dacoity, robbery and breach of trust is empowered to even get recovery of the subject-matter of crime, but in the cases registered under Chapter XVIII, the only remedy provided for the prosecution is the conviction of the accused and no process of recovery can be effected for the offences relating to documents or trade of property marks.
8. When on 25-10-2002, Section 489-F, P.P.C. was inserted in P.P.C., Order XXXVII, C.P.C. was already a part of statute book providing the mode of recovery of the amounts subject-matter of negotiable instruments and a complete trial is available for the person interested in recovery of the amounts of a dishonoured cheque, therefore, not only that the complainant in criminal case under section 489-F, P.P.C. cannot ask a Criminal Court to effect any recovery of the amount involved in the cheque, but also the amount whatsoever high it is, would not increase the volume and gravity of the offence. The maximum punishment provided for such offence cannot exceed from 3 years. Even this conviction of 3 years is not an exclusive punishment. By using word "or" falling in between the substantive sentence and the imposition of fine, the Legislature has provided the punishment of fine as an independent conviction and this type of legislation brings the case of such nature outside the scope of prohibitory clause of section 497, Cr.P.C. The possibility cannot be ruled out and it would remain within the jurisdiction of trial Court that ultimately the sentence of fine independently is imposed and in such eventuality, nobody would be in a position to compensate the accused for the period he has spent in incarceration during trial of offence under section 489-F, P.P.C.
9. I have experienced that in almost every case, where an accused applies for the concession of bail in case under section 489-F, P.P.C., it is oftenly opposed on the ground that huge amount is involved and it is yet to be recovered. The police agency also request for the physical remand of the accused and the cancellation of bail in order to facilitate the process of recovery of the amount, in question, in criminal investigation. No such process can be allowed to be adopted either by the Courts dealing with the matter of remand or trial of the offence under section 489-F, P.P.C. or the Investigating Agency to effect recovery.
10. In business circles, the issuance of cheques for security purposes or as a guarantee is a practice of routine, but this practice is being misused by the mischief-mongers in the business community and the cheques, which were simply issued as surety or guarantee are subsequently used as a lever to exert pressure in order to gain the unjustified demand of the person in possession of said cheque and then by use of the investigating machinery, the issuer of cheque is oftenly forced to surrender to their illegal demands and in the said manner, the provisions of this newly inserted section of law are being misused. Securing the money in such manner would be termed as extortion.
11. The learned counsel for the complainant by placing reliance on the case of SHAMEEL AHMED v. THE STATE (2009 SCMR 474) has further argued that the accused of such like cases are not entitled to be released on bail merely on the ground that the maximum punishment provided for such offence is 3 years.
12. The learned counsel for the complainant has not gone into details of the cited judgment of the apex Court. It is held in the cited case that it is discretion of every Court to grant the bail, but such discretion should not be arbitrary, fanciful or perverse. It was a case of cancellation of bail and the bail allowed to a person was cancelled, who remained fugitive from law for a long period and during almost one year after registration of the case, neither he applied for pre-arrest bail nor surrendered before any Court and in the said matter, the High Court had already directed the trial Court to conclude the trial within four months and in such background, apex Court found it proper not to interfere in the findings of the High Court. The other factors, which have been discussed above were not raised before the Hon'ble Supreme Court of Pakistan while dealing with Shameel Ahmed's case.
13. For what has been discussed above, the petitioner, who is behind the bars since 1-12-2011 is entitled to be released on bail and, therefore, this petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
MWA/A-5/L Bail granted.
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