Sardar NISAR AHMED vs THE STATE
This matter arises from a petition for pre-arrest bail in respect of an F.I.R. registered under Section 489-F of the Pakistan Penal Code 1860, concerning the dishonour of a cheque issued for the price of furniture and fixtures. The core legal question was whether the issuance of the dishonoured cheque attracted criminal liability under Section 489-F where the underlying financial dispute had been referred to arbitration and the determined amount had allegedly been paid. The court held that once the matter was referred to arbitration and the reduced amount determined by the arbitrators was paid pursuant to a receipt—the signatures on which were undisputed—the amount payable under the cheque was no longer 'due' in terms of the penal provision, rendering the element of dishonesty questionable and malice plausible. The court laid down the principle that genuine settlement of a monetary dispute through arbitration prior to or alongside proceedings can negate the essential ingredients of Section 489-F of the Pakistan Penal Code 1860, thereby making a case for confirmation of pre-arrest bail.
- Whether pre-arrest bail can be confirmed under Section 489-F of the Pakistan Penal Code 1860 when the underlying monetary dispute has been settled through arbitration?
- Does the payment of an arbitrated settlement amount negate the requirement of an amount being validly 'due' for the purposes of Section 489-F of the Pakistan Penal Code 1860?
- Can a plea that signatures were obtained on a blank paper be accepted at the bail stage when the execution of the receipt itself is not denied?
- Section 489-F, Pakistan Penal Code 1860
ORDER
RAUF AHMAD SHEIKH, J.---The petitioner seeks pre-arrest bail in case F.I.R. No,149, dated 19-3-2010 under section 489-F, Police Station, Shalimar, Islamabad. The allegation against him is that he gave a cheque of Rs,5,50,000 which was drawn on Muslim Commercial Bank, G-II Markaz, Islamabad on account of price of furniture and fixtures installed in a shop got on rent by him through the complainant and the same was dishonoured on its presentation.
2. The learned counsel for the petitioner contends that the matter was referred for arbitration to the Traders Welfare Association with consent of the parties, which after deliberations decided-that a sum of Rs,3,10,000 was due from the petitioner to the complainant which was paid vide receipt and nothing was due but the cheque was not returned by the complainant with ulterior motive. The learned counsel for the petitioner has referred to the proceedings conducted by the arbitrators and the receipts issued by the complainant.
3. The learned counsel for the respondent has contended that in fact signatures and thumb impression of the petitioner were obtained on a blank paper and in fact no payment was made and actually an amount of Rs,5,50,000 is still due for which the cheque was issued and on presentation it was dishonoured by the Bank.
4. Signatures and thumb impression on the receipt are not denied. The contention that these were obtained on blank paper through inducement or fraud cannot be accepted at this stage. The parties had referred their dispute to the Traders Welfare Association, G-II Markaz Islamabad and they after hearing the parties and inspection of the record had decided that a sum of Rs,3,10,000 was due which was paid vide receipt. The agreement to refer the matter to the Traders Welfare Association is also available on the tile and not denied. In these circumstances, it is obvious that the amount payable under the cheque was no more 'due and no dishonesty was committed by the petitioner. The contention of the petitioner that he has been involved in the false case due to malice is not without weight and cannot be ruled out. In view of the above facts, the petition is accepted and ad interim pre-arrest bail granted to the petitioner is confirmed subject to his furnishing bail bonds in the sum of Rs, one lac with one surety in the like amount to the satisfaction of the trial Court.
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