PERVAIZ JOHN alias PERVAIZ MASIH vs THE STATE and another

ORDER

' SH. AHMAD FAROOQ, J---The petitioner seeks his pre-arrest bail in a case arising out of F.I.R. No,217 of 2010, dated 4-3-2010, registered in Police Station Civil Lines, Lahore, under section 489-F, P.P.C.

2. Succinctly, the allegations against the petitioner, which were levelled by the complainant, Javaid Tahir, in the F.I.R., are that the accused/Pervaiz Masih obtained a loan of Rs.12,00,000/- from him on 23-1-2009 in the presence of the witnesses namely Nadeem Aqeel Gull and Moris Javaid and for repayment of the said loan, he issued a Cheque bearing No,CD-1213385, dated 15-2-2009, amounting to Rs.12,00,000 which was dishonoured by the concerned Bank on 9-4-2009 on its presentation for encashment due to insufficient funds. However, the complainant admitted the repayment of Rs.75,000/- by the accused, in hard cash.

3. Learned counsel for the petitioner submitted that as a matter of fact, the petitioner took loan from the complainant in September, 2008, which was repaid by him, on 24-11-2008 through deposit in the account of the complainant/Tahir Javaid. He further submitted that the petitioner has filed a suit for rendition of account against the complainant and as such, the dispute between the parties is of civil nature and the complainant has falsely implicated the petitioner in this case with mala fide intention. Lastly, he argued that in order to find the dishonest intention of the petitioner in issuing the cheque in dispute, evidence needs to be recorded.

4. Conversely, the learned counsel for the complainant as well as the learned Deputy Prosecutor- General opposed the instant petition on the ground that there is no mala fide on the part of the complainant for false implication of the present petitioner. They further argued that the issuance of the cheque in dispute amounting to Rs.12,00,000/- was not denied by the petitioner before the Investigating Officer. Lastly, they maintained that the grounds advanced by the learned counsel for the petitioner are not relevant for seeking pre-arrest bail.

5. Arguments heard. Record perused.

6. Admittedly, the present petitioner issued a Cheque bearing No,1213385, dated 5-2-2009, amounting to Rs.12,00,000/- in favoaur of the complainant/Javaid Tahir and the same was dishonoured by the concerned Bank on 9-4-2009 due to non-arrangement of the funds. The contention of the learned counsel for the petitioner that the petitioner took loan of Rs.12,00,000/- from the complainant in September, 2008, is prima facie not substantiated from any document.

Similarly, the cheque in dispute was issued on 15-12-2009 whereas amounts of Rs.1,00,300/- and Rs.75,110/- were deposited in the account of Javaid Tahir/ complainant on 24-11-2008 and 2-2- 2009, respectively. Obviously, the said deposit of amounts cannot be considered as repayment of the loan for which the cheque in dispute was issued on 15-2-2009. As far as, the institution of a civil suit by the present petitioner against the present complainant for rendition of accounts is concerned, the same was admittedly filed on 5-10-2009 whereas the cheque in dispute was dishonoured on 9-4-2009 and as such, prima facie it can safely be presumed that the said suit has been filed in order to avoid the initiation of criminal proceedings by the complainant. Furthermore, it has been held in 2004 YLR 2748 that both the criminal as well as civil proceedings can run side by side and accused, if guilty of an offence under section 489-F, P.P.C., cannot be saved from being prosecuted merely because civil proceedings are pending.

7. It is well-settled that deeper appreciation of the material on record cannot be done and that too while deciding a pre-arrest bail petition. In the instant case, prima-facie, there is no mala fide intention on the part of the complainant for false implication of the petitioner in this case. Not only the issuance of the cheque towards the re-payment of loan but also the bouncing of the said cheque is prima facie proved from the record. Hence, the present petitioner is alleged to have committed an offence, falling under section 489-F, P.P.C., which has been inserted in the Pakistan Penal Code through Criminal Law (Amendment) Ordinance, 2002, with a view to curb the tendency of issuing cheques with dishonest intention to defraud the payee. This section clearly laid down that whoever dishonestly issued a cheque towards repayment of loan or other fulfilment of obligation, is liable to face legal consequences on its being dishonoured. Reliance is placed on PLD 2009 Lahore 401. Lastly, the ground of the need of recording evidence to establish dishonest intention advanced by the learned counsel of the petitioner is not relevant for disposal of a pre- arrest bail petition.

8. In view of what has been stated above, the petitioner is not entitled to the extraordinary concession of pre-arrest bail. Resultantly, the instant pre-arrest bail petition filed by Pervaiz. John alias Pervaiz Masih is dismissed.

Pre-arrest .