PLJ 2023 SC (Cr.C.) 166
[Appellate Jurisdiction]
Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and
Mrs. Ayesha A. Malik, JJ.
AHMED SHAKEEL BHATTI and others--Petitioners
versus
STATE and others--Respondents
Crl. P. Nos. 1197-L and 1263-L and C.P. No. 1596-L of 2021,
decided on 16.3.2022.
(Against the order dated 01.06.2021 of the Lahore High Court, Lahore passed in Criminal Misc. No. 35569-B of 2021)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(5)/498--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonestly--ingredients--Commercial integrity is an ethical standard--Pre-Arrest bail--cancellation of bail--The petitioner seeks cancellation of bail granted to the said respondent--Commercial integrity is an ethical standard which would require evidence for establishing its absence in the conduct of an accused--Such an assessment can be made at the trial--Dishonestly is an ingredient of the offence under section 489-F of the, PPC--The cancellation of pre-arrest bail can be ordered in the instant case if the element of dishonesty is presently indicated from the conduct of the Respondent--None of these grounds for cancellation of bail interfere in the impugned order of the High Court--Leave to appeal is declined. [P. 170] A, B, C & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)/498--Cancellation of orders granting bail are ordinarily resorted by the Court on two grounds--
(i) When the impugned order is perverse in the face of it or
(ii) when the impugned order has been made in clear disregard of some, principle of the law of bail. [C]
Mr. Ahsan Bhoon, ASC for Petitioners (in Criminal Petition No. 1197-L of 2021).
Mr. Hafeez Saeed Akhtar, ASC for Petitioners (in Constitutional Petition No. 1596-L of 2021).
Ch. Muhammad Sarwar Sidhu, Additional P.G., Amir Abbas, DSP for State.
Mr. Shaukat Rauf Siddiqui, Additional A.G. for Government of Punjab.
Kh. Haris Ahmed, Senior ASC for Respondents (in Criminal Petition No. 1197-L of 2021).
Date of hearing: 16.3.2022.
Judgment
Umar Ata Bandial, C.J.--Petitioner in Criminal Petition
No. 1197-L of 2021 seeks leave to appeal against the order
dated 1.6.2021 whereby pre-arrest bail was allowed to Respondent
No. 2 (“Respondent”) in case FIR No. 400/2020 dated 20.05.2020, registered under Section 489-F, P.P.C., Police Station Gulberg, Lahore. The Petitioner seeks cancellation of bail granted to the said Respondent.
2. The Petitioner entered into a Share Purchase Agreement dated 25.7.2017 and an Addendum dated 11.01.2019 with the Respondent for the sale of Pasrur Sugar Mill (“Sugar Mill”) for a price of Rs. 840 million. The Respondent paid Rs. 500 million on 02.01.2019 and issued a post dated cheque for Rs. 340 million which was to be encashed on 15.4.2020. Management and possession of the Sugar Mill was transferred on 11.01.2019 to the Respondent. On 17.4.2020, the cheque was presented for encashment. However, it was dishonoured which led to the registration of FIR No. 400/2020 dated 20.05.2020 under Section 489-F, P.P.C. by the Petitioner against the Respondent. The learned counsel for the Petitioner argued that the cheque was dishonoured on the instructions given by the Respondent to his Bank to stop payment. He argued that, the Respondent was required to make this payment as he was availing the benefits from the business of the Sugar Mill since 11.01.2019 but has reneged on his obligation with mala fide and dishonest intent making him liable under Section 489-F of the P.P.C. Consequently, the grant of pre-arrest bail to him was not made out because he had deliberately and dishonestly stopped payment of the cheque. The Respondent’s counsel, however, stated that the dispute relates to a commercial transaction between the parties. The Petitioner was required to fulfill his end of the bargain before he could encash the cheque. Since he had failed to fulfill his obligations under the two agreements, he was not entitled to encash the cheque. There is no element of dishonesty by the Respondent; no offence is made out under Section 489-F, P.P.C. and therefore the Respondent is entitled to bail before arrest.
3. The dispute between the parties relates to whether the Petitioner has fulfilled his obligation to furnish NOCs under the Addendum dated 11.01.2019. The Petitioner’s case is that all conditions of the Addendum have been fulfilled by him. Further documentation relating to the NOCs from trade creditors and charge holders on land owned/held by the Sugar Mill can be collected with the cooperation of the management of the Sugar Mill. The Respondent has not cooperated in this behalf notwithstanding that he has management, control and possession of the assets and records of the Sugar Mill since 11.01.2019. That the latter has contrived a superficial dispute to avoid his financial obligation owed to the Petitioner.
4. For all practical purposes, Respondent has the control, management and possession of all the assets, operations and profits of the Sugar Mill. There is no complaint by him that any person whose NOC is awaited under the Addendum dated 11.01.2019 has disturbed the peaceful operation of the Sugar Mill since 11.01.2019. Yet the Respondent has not paid the balance sale consideration of Rs. 340 million which is overdue since 17.04.2020 when his cheque was dishonoured. We are also informed that the parties are engaged in civil litigation, including proceedings under the Arbitration Act, 1940, wherein the Petitioner seeks payment of the balance sale consideration. Meanwhile, the Respondent continues to operate the business of the Sugar Mill indicating that he is drawing benefit, advantage or profit there-from.
5. In the above background, the High Court arrived at the prima facie view that the Petitioner complainant was in default of his obligations under the agreements and therefore the FIR lodged by him against the Respondent was mala fide. Accordingly, by the impugned order dated 01.06.2021, the High Court admitted the Respondent to pre-arrest bail.
6. The Petitioner has invoked the appellate jurisdiction of this Court for the cancellation of bail granted by the High Court to the Respondent. The gist of the Petitioner’s argument is that the Respondent has withheld the balance sale consideration of the Sugar Mill without any substantive ground for deriving greater business advantage against partial payment of his investment. No instance is cited when the Respondent has been obstructed, interfered or harassed in the operation and business of the Mill for the last 3-1/2 years since 11.01.2019 by any person whose NOC is being demanded by the Respondent. Nor has the Respondent claimed that he and the Sugar Mill management have cooperated with the Petitioner to secure the desired NOCs. Yet the Petitioner remains out of pocket of Rs. 340 million.
7. In essence the Petitioner alleges lack of commercial integrity on the part of the Respondent who continues to derive benefit from the bargain whilst refusing to perform his reciprocal obligation on textual part of ethical and fair business practices and goes to the root of all commercial transactions in particular major transactions like the present one. The explanation given by the Respondent for dishonour of the cheque of Rs. 340 million is the non-compliance of the terms of the Addendum by the Petitioner. This version fails to account for the Respondent’s alleged non-cooperation through the Mill management which is stated to have handicapped the petitioner in securing the formal NOCs claimed by the Respondent. The High Court has considered the dispute and whilst calling it a commercial matter placed the entire burden of furnishing the requisite documentation on the Petitioner. This is done without considering that the Petitioner being no longer in control and management of the Sugar Mill lacks locus standi to seek or collect documentation for and on behalf of the Sugar Mill. As such the default on the part of the Petitioner may be an induced rather than an intentional one.
8 We may observe that commercial integrity is an ethical standard which would require evidence for establishing its absence in the conduct of an accused to a degree that constitutes dishonesty by him within the meaning of Section 489-F, P.P.C. In the facts of the present case, such an assessment can be made at the trial to evaluate whether any improper benefit, if at all, has been derived by the Respondent on account of the stoppage of payment of his cheque which was wrongful. This aspect of the matter cannot be determined at the bail stage in the present case. As dishonesty is an ingredient of the offence under Section 489-F of the P.P.C., therefore, the cancellation of pre-arrest bail can be ordered in the instant case if the element of dishonesty is presently indicated from the conduct of the Respondent. Evidentiary material to such effect is lacking on record at the present stage. Indeed, if evidence on the point is brought at the trial, the finding thereon will depend on the significance and materiality of the obligation claimed by the Respondent to have been breached by the Petitioner under the terms of the bargain between the parties.
9. The scope of interference to be made against the grant of bail by this Court in its appellate jurisdiction is well settled and hardly needs reiteration. Cancellation of orders granting bail arc ordinarily resorted by the Court on two grounds: (i) when the impugned order is perverse on the face of it or (ii) when the impugned order has been made in clear disregard of some principle of the law of bail. A perverse order is one that has been passed against the weight of the material on the record or by ignoring such material or without applying the relevant legal criteria or without giving reasons. Such an order is also termed as arbitrary, whimsical and capricious. None of these grounds for cancellation of bail interfere in the impugned order of the High Court. Accordingly, leave to appeal is declined in Criminal Petition No. 1197-L of 2021, and it is dismissed.
10. Criminal Petition No. 1263-L of 2021, preferred by the State against the same impugned order and seeking cancellation of bail granted to the Respondent, is also dismissed and leave refused.
11. Learned. counsel for the Petitioner does not press Civil Petition No. 1596-L of 2021, which is accordingly dismissed.
(K.Q.B.) Appeal dismissed
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