MUHAMMAD AFZAL vs THE STATE and others
This petition for post-arrest bail arises from an FIR registered under Section 489-F of the Pakistan Penal Code 1860, concerning the dishonour of a cheque valued at Rs. 13 lacs. The petitioner contended that the cheque was issued as security for business transactions involving the purchase of wood, arguing that the dispute was essentially civil in nature and that the complainant was using criminal proceedings as a tool for recovery. The Court examined the circumstances, noting that the police failed to collect the original cheque and slip at the time of FIR registration, only rectifying this later. The Court held that Section 489-F, Pakistan Penal Code 1860 is not intended to be a tool for recovering business debts, and that the complainant must establish criminal intent to defraud. Emphasizing that the offence does not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898, and that pre-trial detention should not serve as punishment, the Court granted bail to the petitioner.
- Does the issuance of a cheque as security for business liability constitute an offence under Section 489-F of the Pakistan Penal Code 1860?
- Can criminal proceedings under Section 489-F of the Pakistan Penal Code 1860 be utilized as a mechanism for the recovery of business debts?
- Is an accused entitled to bail when the alleged offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Muhammad Afzal petitioner seeks his release on bail in case F.I.R. No,153 dated 3-5-2012 registered under section 489-F, P.P.C. With Police Station, Mandi Faizabad, District Nankana Sahib for issuing cheque valuing Rs,13 lacs to the complainant of the case which was dishonoured when presented for encashment.
2. Parties heard. Record perused.
3. At the time of lodging the F.T.R. Against the petitioner the police did not. Collect the original cheque and the slip from the complainant of the case which deficiency was made out by the police when the investigation;in the case was completed. The stance of the petitioner is that the parties have business inter se of selling and purchasing of woods and the cheque was issued by the petitioner in lieu of the woods purchased by him. This stance taken by petitioner necessarily shows that the complainant wants return of the sale price of the woods sold to the petitioner which assertion makes the case as one of civil liability for which the petitioner has to avail remedy in the court of competent jurisdiction. The provisions of section 489-F, P.P.C. Have not been promulgated for using it as a tool for recovery of the amounts due in business dealings for which the civil remedy has already been provided by law. The law so promulgated places heavy duty upon the complainant to show criminal intent of drawer of negotiable instrument to defraud him by issuing a fake cheque. During the business terms 'it is common practice amongst the business community of issuing cheques as security for liquidating of business liability which cheques are never meant for encashment and usually are returned when the liability is discharged. Admittedly, the petitioner is in judicial lock up for the last more than two months for an offence which does not fall within the prohibitory clause of section 497, Cr.P.C. It is cardinal rule of law that a person cannot be detained in the jail as punishment before the conclusion of the trial. Accordingly it is a fit case for grant of bail.
4. For what has been discussed above, the petition is allowed and Muhammad Afzal petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,five lacs with two sureties in the like amount the satisfaction of learned trial Court.
BAil Garented
Cited by 2 cases
- HAMID KHAN Versus State 2022 MLD 31
- Sheikh REHAN AHMED vs JUDICIAL MAGISTRATE-II, SOUTH, KARACHI and 2 2019 MLD 636