B.A. 489-F

IN THE COURT OF IInd. JUDICIAL MAGISTRATE AT KARACHI EAST

B.A. In Case No.  2129 /11

R.A.                   …………………..………………………              APPLICANT

VERSUS

The STATE      ………………………………….                        RESPONDENT

FIR No. 106/2011

U/S. 489-F PPC

P.S. Al-Falah

                                                                                               

WRITTEN ARGUMENTS FOR BAIL APPLICATION U/S. 497 CRPC

It is respectfully submitted on behalf of the above named accused/Applicant that this Hon’ble Court may be pleased to enlarge him on bail in consideration of the following grounds: -

GROUNDS

1.      That the Applicant is quite innocent and story in this case is false and fabricated by the complainant on instance of I.O of the case to humiliate and unjustified harassment the Applicant in the eyes of society.

2.     That the Applicant is a business man and belongs to respectable family this case has been made mala fidely for just to harass and humiliate in eyes of the society, the complainant had remedy for repayment if any to file Suit For Recovery U/O. 37, R 2 so far, despite elaps of more than two years, but no suit was filed, and he implicated the applicant in this case, it  clears recovery of mony is not intended but to harass, degrade in the eyes of the society  as there is an  unexplained delay of two days in lodging the FIR.

3.     That bussines partnership is admitted, alledged Cheque was issued as a guarrentee for bussines partnership, the complainant has received the whole amount but he did not return the cheque depite several requests, and it is a matter of rendition of account between the parties, case of accused, in circumstances had become one of a fit case for further inquiry. Relied upon 2007 MLD 1234; 2009 SCMR 1488; 2009 P.Cr. L J. 1418

4.     That question of dishonest issuance of cheque and its dishonoring not to be determined at bail stage. Bail cannot be refused when no recovery of amount under the cheque was yet to be made. Offence not falling within prohibitory clause of S. 497. Relied upon 2010 YLR 664.

5.     That the allegation leveled in the FIR is Civil nature case or civil liability, while no Copy of the said cheque has been annexed with FIR.

Relied upon 2009 P.Cr. L J. 1418: it was held

---S. 497---PPC S.489-F---Bail, grant of---Transaction between the accused and the complainant being one of business dealing, was of civil nature--- Offence U/ S.489-F PPC did not fall within prohibitory clause of S. 497(1), Cr.P.C.--- Continued confinement of accused would amount to punishment before conviction, which was not permissible under criminal jurisdiction---Courts had allowed bail in cases where business transaction were admitted---Accused was admitted to bail in circumstances. 2009 P.Cr. L J. 1418 [pp.1420, 1421] A, B, C, & D.

---S. 497---PPC S.489-F---Bail, grant of---Case of civil liability---for which the complainant had to avail the remedy in a court of competent jurisdiction---Offence U/ S.489-F PPC did not fall within prohibitory clause of S. 497(1), Cr.P.C.---Accused was admitted to bail in circumstances.  2012 YLR 2780.

6.     That provisin of S. 489-F PPC had not been promulgated for using it as a tool for recovery of amount due in business dealings for which civil remedy had already been provided by law. Relied upon 2012 YLR 2781-B.

7.     That mere because of a cheque which susequently dishonored does not constitute an offence under section 489-F unless same is issued dishonestly as for the repaymanet of a loan for discharged any obligation. Relied upon 2008 MLD 159.

8.      That from perusal of the contents of FIR it is very clear that the complainant has concocted a story, , and no prima facie case is made out under Section 489-F PPC which has been registered under the instructions and without taking into consideration and applying his mind on the contents of the complaint.

9.     That the present crime is not punishable with 10 years or R.I or more, hence it does no fall within ambit of prohibitory clause of section 497 Cr.PC.

RELIED UPON 2009 SCMR 1488. As it held in

S.497/498---Bail---Principles—Courts in cases, where offence falls within non-prohibitory clause S.497 Cr.P.C--- consider favorably by granting bail as a rule but decline to do so in exceptional cases. 2009 SCMR 1488. 2007 MLD 926.

10.                       That investigation has been completed and challan has been submitted and the applicant/accused no more required for investigation. Accused cannot be kept behind the bar as a punishment. Relied upon 2010 P.Cr.L 1866; 2010 YLR 2982

11.                       the applicant is not a previous convicted nor a hardened criminal and neither he will temper with P.Ws nor he will abscond and he will join the prosecution for investigation, as he is permanent resident of Karachi.

12.                       That if the accused/applicant is not released on bail he will not be able to defend him properly and he shall be suffered irreparable loss which cannot be measured monetarily and will be humiliated in the eyes of the society.

13.                       That the applicant/accused is ready to furnish solvent surety to the entire satisfaction of this Hon’ble Court.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to grant him bail  under the fact and circumstances mentioned above.

Prayed accordingly in the interest of Justice.

Karachi.

Dated: 02/09/13.                                                                                       

S M ZUBAIR

Advocate for the Applicant