MUHAMMAD SALEEM vs STATE

ORDER

The petitioner seeks post arrest bail in case FIR No, 232 dated 22-8-2008 registered under sections 489-F PPC with Police Station City Farooq Abad Sheikhupura, with the allegation that he had availed a financial facility from the Bank of Punjab, Main Branch, Lahore Road, Sheikhupura, for his flour mills and had become a defaulter subsequently and executed three cheques worth Rs, 58,00,000/-, Rs,42,00,000/- and 6,58,00,000/- respectively and the first two cheques were to be encashed on 31.3.2008 whereas the third cheque on 30-4-2008 but before 31.3.2008, the petitioner requested the complainant-Bank not to present the said cheques on the said date and promised to pay the said amount on 30-4-2008. The period was extended for 60 days on his application but despite the lapse of specified period the payment could not be made and the cheques were dishonoured and returned by the concerned Branch with the slip containing remarks "funds not sufficient". According to the Bank, the petitioner has committed an offence under Section 489-F PPC.

2. Learned counsel for the petitioner contends that the Bank is a Financial Institution under Section 2(d)(iv)/7,20 and 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which is required to file a complaint if a cheque is dishonestly issued by the person obtaining financial facility; that provisions of Section 489-F PPC are applicable where an individual owes responsibility to another person and dishonestly issued the cheque to the others In this respect, he relies on (2006 CLD 1314), (PLD 2001 Lahore 533) and (PLD 2008 Karachi 212). He further submits that in a complaint case nail is a right of the accused and when summoned by the learned trial court and required to submit surety bonds under Section 91 Cr. P.C; that even otherwise under Second schedule of Code of Criminal Procedure an offence carrying punishment of one year RI is bailable; that offence under Section 20 of the Financial Institutions (Recovery of Finances) Ordinance 2001 is bail able and a person cannot be remanded to custody in a bailable offence provided he is ready to submit surety bonds.

3. Conversely, learned DPG has vehemently opposed this bail application on the ground that Section 489-F PPC is attracted in all the cases in which the cheque is dishonestly issued and it is dishonored; that petitioner has dishonestly issued the cheque knowing fully well that his bank account was not carrying sufficient amount; that the cheques were presented for encashment and dishonoured; that it is a case in which huge amount is involved and money worth crore was to be paid by the petitioner to the Bank and the commission of offence on the part of the petitioner is apparent; that pre-arrest bail is meant for the innocent persons to protect them from the ulterior motive of the police; that pre-arrest bail already granted to the petitioner may be withdrawn.

4. After hearing the learned counsel for the parties and perusing the record this court is of the view that Section 489-F PPC and Section 20 of the Ordinance ibid are two independent sections. Section 489-F PPC is applicable when transaction is between the two individuals. Financial Institutions have been defined by the Financial Institutions (Recovery of Finances) Ordinance 2001 and the Banks are the financial Institutions and if an offence regarding dishonest issuance of cheque, is committed to satisfy the loan secured from a Banking Institution then Section 20 of the above mentioned Ordinance would be applicable and the Bank would be required to file complaint before the Banking court in that case, registration of case before police would not be legally competent.

Simultaneously, its investigation and submission of challan would not be in accordance with law and the learned trial Court is debarred from taking cognizance of offence on the report of police officer submitted under Section 173 Cr. P.0 in that eventuality. The definition of word 'complaint' excludes the report of an police officer from the domain of complaint.

5. In the above circumstances, the very registration of this case and subsequent investigation is not under the relevant provisions of law. Section 20 of the Ordinance carries maximum penalty of one year and under the said Ordinance the offence is bailable and in a bailable offence accused cannot be remanded to police custody.

6. Resultantly, the ulterior motive of the police is quite apparent in the registration of this case. This court is of the view that a good case for grant of pre-arrest bail is made out, hence, this petition is allowed and the pre-arrest bail already granted to the petitioner is hereby confirmed. The petitioner is directed to submit fresh bail bonds in the sum of rupees ten lacs with two sureties in the like amount to the satisfaction of learned Ilaqa/judicial Magistrate.