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MIAN ALLAH DITTA versus STATE

Section 498 Criminal Procedure (XLV of 1860), Section 489F shamelessly issuing checks pre-arrest guarantees, confirming security-issued checks and payment of outstanding checks or payment of vigorous checks on the fulfillment of any obligation. , Whose presentation was dishonored, alleges that when the parties to the question agree to resolve their dispute through mediation, the questioning arbitration agreement is linked to the investigation. Was issued in the security way, rather than performing the duty, but it was indicated that there were some outstanding The question was not needed or pay in connection with the completion of a current liability, so it was released to the possible future liability. , Section 489F, PPC's main elements were first in the circumstances in which the pre-arrest warrant of the accused was confirmed. 2013 SCMR 51 SUPREME COURT Before TASSADUQ HUSSAIN JILLANI, J Mian ALLAH DITTA versus State Respondent

JUDGMENT

            TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks bail in the case registered vide F.I.R. No.261 of 2012 dated 7-8-2012 under section 489-F, P.P.C. at Police Station Kotwali District Sialkot on the statement of Mian Muhammad Shoban with the allegation that he had some business transactions with the petitioner; that in that regard the petitioner owned him a sum of Rs.2500,000 for which he issued cheque bearing No.41741493 amounting to Rs.2500,000 which was dishonored when presented before the Askari Bank.

2.         Learned counsel for the petitioner seeks bail on the ground that the case is false; that the petitioner and complainant entered into an agreement for construction of complainant's house; that a dispute arose with regard to the rendition of amounts for which one Arshad Mehmood Bagoo Advocate was appointed as Arbitrator and it was agreed that whatever the said Arbitrator decided, both sides would abide by and comply with the said decision. The cheque in question, he further contended,  was issued as security and this was not the amount which was to be paid to the complainant nor he was ever held entitled to receive the said amount by the Arbitrator (vide the Arbitration Award dated 24-11-2011).

3.         Learned counsel for the complainant, on the other hand, opposes the petition and submits on instructions that the cheque in question was issued on account of an agreement dated 17-8-2011 and that the arbitration award to which reference has been made by petitioner's learned counsel is not relevant; that petitioner owes the cheque amount mentioned in the cheque and that is why he issued the cheque which has been dishonored and he is not entitled for the grant of bail.

4.         The investigating officer present in Court, on Court's query, submits that during investigation, it has come to light that Mr. Arshad Mehmood Bagoo was appointed as Arbitrator and in terms of his award, petitioner owed the complainant Rs. 650,000 and the cheque issued by the petitioner was by way of security when parties had decided to have the matter settled through arbitration and it was not the actual amount which petitioner was liable to pay to the complainant.

5.         Learned  Additional  Prosecutor-General  opposes  the  petition by  submitting  that  the  very  fact  that  petitioner  issued a  cheque which  was  dishonored  makes  him  criminally  liable  and  he  is  not entitled  to  pre-arrest  bail  as  there  are  no  mala  fides  apparent  on record.

6.         Having heard learned counsel for the parties and learned Law Officer at some length and having gone through the record, we find that the agreement dated 17-8-2011 to which reference has been made by complainant's learned counsel is of a prior date which was overtaken by a subsequent arbitration accord dated 24-11-2011 and the cheque dated 20-7-2012 ex facie appears to be connected with the said subsequent arbitration accord. This is also borne out from the finding in investigation carried out by the police. According to the investigating officer, the cheque issued amounting to Rs.2500,000 was by way of security, rather than for the discharge of liability to the tune of the amount mentioned in the said cheque. He further added that in terms of the award given by the Arbitrator, petitioner owes only Rs.6,50,000. Be that as it may, we would not like to go into depth of the issue lest it may prejudice anyone during investigation or trial. But the case in hand begs a  question  as  to what constitutes an offence under section 489-F, P.P.C. Every transaction where a cheque is dishonored may not constitute  an  offence.  The  foundational  elements  to  constitute  an offence under this provision are issuance of a cheque with dishonest intent,  the  cheque   should  be  towards  repayment  of  a  loan  or fulfillment of an obligation and lastly that the cheque in question is dishonored.

7.         In the instant case, prima facie, the circumstances indicate that the cheque in question was not issued towards repayment of some outstanding  loan  or  fulfillment  of  an  existing  obligation  but  instead it  had  been  issued  to  meet  a  possible  future  obligation  if determined as a result of  some other  exercise.  That  being  so,  one  of the foundational  elements  of  section  489-F, P.P.C. is prima facie missing. The invocation of penal provision would therefore remain a moot  point.  The  ground  that  prosecution  is  motivated  by  malice may not in these circumstances be ill-founded. Consequently, this petition is converted into appeal and allowed and subject to petitioner's furnishing bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court, he shall remain on pre-arrest bail.

MWA/A-30/SC                                                                                   Petition allowed.

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