489 F PPC PAKISTAN

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2014 Y L R 882

[Lahore]

Before Sh. Najam-ul-Hasan, J

Syed SHAN ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4766-B of 2013, decided on 27th May, 2013.

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Ad-

interim pre-arrest bail, confirmation of---Dishonoured cheque handed over/ given by
accused but not issued by him---Complainant alleged that he purchased a plot from
a company run by the accused; that said plot was neither transferred in his name
nor possession of same was delivered to him; that the matter was settled between
the parties as a result whereof accused "handed" him a cheque, "issued" by some
other person, which cheque was dishonoured on presentation---To constitute an
offence under S. 489-F, P.P.C it was mandatory to prove that accused himself "issued
"the cheque---Complainant had only stated that accused gave him a cheque issued
by some other person---Although accused might have cheated/defrauded the
complainant or committed breach of trust, but S. 489-F, P.P.C was not attracted in
circumstances of the present case----Ad-interim pre-arrest bail already allowed to
accused was con-firmed in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Scope---Dishonoured cheque handed

over/given by accused but not issued by him---Question as to whether S.489-F, P.P.C
would be attracted where dishonoured cheque was merely handed over by accused
but was issued by some other person (i.e. from someone else's account)---Section
489-F, P.P.C applied to those cases only where cheque was issued by the accused
himself and not in any other case.

Zubair Afzal Rana for Petitioner.

Rana Tassawar Ali Khan, D.P.G. with Sakawat Ullah A.S.-I. for the State.

Iqbal Ahmad Dhudhi for the Complainant.

ORDER

SH. NAJAM-UL-HASAN, J.---Through this petition the petitioner has sought

pre-arrest bail in case F.I.R. No.285 dated 18-3-2013 registered under section 489-F,
P.P.C. at Police Station Allama Iqbal Town, Lahore.

2. The case was registered on the statement of one Mahboob Alam stating
therein that he purchased a plot from the company, namely, Green Housing Scheme
and paid Rs.3,50,000. Later on plot was not transferred and the matter was settled
and a cheque for an amount of Rs.3,50,000 was handed over by the petitioner to
the complainant which was issued by one Aleena Aneela Qaisar and same was
presented in concerned bank but was dishonoured and as such the case was
registered.

3. Learned counsel for the petitioner submits that the petitioner is innocent
and has been falsely involved in this case; that the petitioner is not the exclusive
owner of the plot and said land was owned by the company which was run by the
petitioner and his brother along with one Kausar Ali and amount was received by
Kausar Ali and not by the petitioner. Learned counsel further contends that the
disputed cheque was neither issued by the petitioner nor was of his bank account
rather admittedly same was issued by one Aleena Qaisar and as such ingredients of
section 489-F, P.P.C. are not made out. Prayer for pre-arrest bail has been made.

4. On the other hand, the learned law officer assisted by learned counsel for
the complainant submits that the petitioner along with his other partners are
involved in this matter and they are defrauding the public. They have received
amount and are not handing over the possession of the plot; that the petitioner has
deprived the complainant of a huge amount and as such he is not entitled to any
exception. The learned law officer submits that cheque was handed over by the
petitioner and involvement of the petitioner in this case is evident.

5. I have heard arguments of the learned counsel for the parties and have also
gone through the record. Grievance of the complainant voiced through the F.I.R. was
that he purchased a plot from the company, namely, Green Housing Scheme which
was being run by the petitioner and others but neither the plot was transferred in
his name nor possession was delivered to him, as such he approached the petitioner
and the matter was settled between the parties as a result whereof the petitioner
handed him over a cheque amounting to Rs.3,50,000 issued by one Aneela Qaiser
but the same was dishonoured on presentation. On these premises the police has
registered a case under section 489-F, P.P.C. In order to appreciate as to whether the
police rightly applied this provision of law or not, the same is reproduced hereunder:

489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque

towards re-payment of a loan or fulfilment of an obligation which is dishonoured on
presentation, shall be punishable with imprisonment which may extend to three
years or with fine, or with both, unless he can establish, for which the burden of
proof shall rest on him, that he had made arrangements with his bank to ensure
that the cheque would be honoured and that the bank was at fault in not honouring
the cheque."

A bare perusal of this section would reveal that to constitute an offence

under this provision it is mandatory to prove that the accused himself issued the
cheque. It was not case of the complainant that the petitioner had issued a cheque
rather he stated that the petitioner gave him a cheque issued by one Aneela Qaiser.
As mentioned above, section 489-F P.P.C. is attracted only where the cheque is
issued by the accused himself. So in the present case this basic ingredient i.e.
"issued" is missing. Here a question arises whether the petitioner has committed no
offence? The answer is that "not under this section but under other provisions of
Law". For the sake of academic discussion a question comes into mind, "Was it
intent of Legislature to bring only those cases within the ambit of section 489-F,
P.P.C. where cheque was issued by the accused himself or whether mere handing
over a cheque belonging to someone else's account would also bring the accused
liable under this section?" The answer to my mind is that this section applies to
those cases only where cheque is issued by the accused himself and not in other
cases. This answer/intent has been gathered by me from careful perusal of this very
provision of law. In the later part of this section it has been provided that to come
out from the rigors of this Section the accused musts show that he had made
arrangements with his bank to ensure that the cheque would be honoured and that
the bank was at fault (Boldness of words and underlining is mine). This part of the
provision makes it crystal clear that intention of the Law Maker is that this section
would attract only to those cases where the cheque is issued by the accused
himself and not in other cases because otherwise word "his" would not have been
written and instead word "the" was sufficient. So the most important and basic
ingredient to constitute an offence under this section is that the accused must
himself issue a cheque. Viewing the matter from this angle I am of the considered
opinion that although the petitioner might have cheated/defrauded the complainant
or have committed breach of trust and thus deprived him of huge amount even
then section 489-F, P.P.C. is not attracted to the facts and circumstances of the
present case. Nothing has been brought on record and thus cannot be said with
certainty that the cheque was ever handed over by the petitioner to the
complainant. Mere assertion of the complainant is not sufficient to connect the
petitioner with the cheque. Till date no other provision of law has been applied
against the petitioner. So presently the petitioner has made out a case for bail.
Consequently, this petition is accepted and ad-interim pre-arrest bail already
granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in
the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction
of the learned trial Court. If during investigation other provisions of law are applied
by the investigator then the complainant would be well within his right to apply for
cancellation of his bail.
MWA/S-65/L Bail
granted.