IN THE COURT OF SESSION JUDGE AT KARACHI EAST
B.A. In Case No. _______ /11
R. A.
Son of S. , Muslim, adult,
Confined in LANDHI PRISON
Karachi. …………………..……………………… APPLICANT
VERSUS
The STATE …………………………………. RESPONDENT
FIR No. 106/2011
U/S. 489-F PPC
P.S. Al-Falah
BAIL APPLICATION U/S. 497 CRPC
Being aggrieved and dissatisfied with the impugned Order, vide dated 03-09-2013, passed by learned 2nd. Judicial Magistrate Karachi East in Case No. 2129 /11, the applicant begs to prefer to this appeal with prayer to to enlarge him on bail in consideration of the following facts and grounds, amongst others, inter-alia.
(Certified copy of the impugned judgment is appended herewith and marked as annexure ‘A’).
BRIEF FACTS
As per an FIR, the Complainant, Ejaz ali arain stated:
“I reside, at above mentioned address, run business. In 2007, with a person namely Riaz Ahmad started a business. I, asif gave him eight lacs with partnership @ 50% on basis of profit & loss basis, but upto now he did not give any amount to us despite a lot of profit. Now he gave me a Cheque bearing No. 0589228 dated 21.4.11 of four lac, to which I deposited in my bank but that was bounced due to insufficient balance. Hence this report for legal action.
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 Order is capricious, whimsical, arbitrary, bad in the eye of law, 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 applicant issued 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 money 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 the complainant entered into an agreement dated 13-04-2011 with the applicant and it was settled between the parties before witnesses the amount of the cheque, without date mentioning, would be paid in installments and in the meanwhile the said cheque will be in cutody of Ch. Muhammad Siddique as security/guaranty, but the complainant committed violation of the agreement and lodged the FIR of the cheque in dispute on 24-04-2011, and had been received the amount of the cheques and concealed the FIR which was lodged under influence of his relative being Sub Inspector. Hence this case which shows malafidity on part of the complainant.
Photo copy of the aforesaid agreement is appended herewith and marked as annexure “A/3”.
4. That section 489-F, PPC, nor any other provision could be employed or use as a tool for affecting the recovery of a financial claim, such being the exclusive jurisdiction of the civil court, to permit the use of the criminal justice system for settlement of civil dispute or effecting the recovery of the amount claimed would amount to abuse of the process of law. This point held in 2008 MLD 160.
5. That the impugned Order is based on misreading of evidence available and finding of the learned court below that bussines partnership is admitted, alledged Cheque was issued as a Assurance/guarrentee in good faith for bussines partnership, without any intention for dishonesty or cheating the compalinant, if it was not so the applicant had not pay any amount, the complainant has received the whole amount in instalments through cheque No. ___________ dated 09-1-2012 of Rs. 50,000/=, cheque No. 0388597 dated 24-7-2012 of Rs. 100,000/=, cheques No. 0365102 dated 15-8-12 of Rs. 160,000/=, 0388598 dated 24-08-12 of Rs. 40,000/=, cheque No. ___________ dated 01-2-2013 of Rs. 50,000/=, but the complainant did not return the cheque No. 0589228 of Rs. 400,000/= 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.
Photo copy of Bank statement & deposit slips are appended herewith and marked as annexure “B/1” to “B/___” respectively.
6. 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. This point held in 2010 YLR 664.
7. That where business transactions are admitted between the parties, Courts generally allow bail to accused. This point held in Relied upon 2009 P.Cr. L J. 1420.
---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.
8. 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. This point held in:
2012YLR 2780
2009 P.Cr. L J. 1418.
---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. This point held in 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.
9. That provision 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. This point held in 2012 YLR 2781-B.
10. 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. This point held in 2008 MLD 159.
11. 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. Relied upon 2008 MLD 160.
12. That the present crime 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---According to practice, consider favorably by granting bail Bail as a rule was refused only in exceptional cases---Present case could not be treated as an exceptional one in view of its facts and circumstances. This point held in 2009 SCMR 1488, 2007 MLD 926, 2009 YLR 257.
13. That the applicant was totally unaware about lodging of the said FIR, when the applicant requested for return of the alleged cheque after clearance of re-payment in installments as mention above the complainant made exuses on one pretxt to the other.
14. That the applicant is not proclaimed offender on the basis of which order under S.87/88, Cr.P.C. declaring accused as a proclaimed offender was made.
15. That Abscondance of accused loses some of his right both under procedural law and the substantive law, but he does not lose all rights, However considering the abscondance it would be proper that higher surety be demanded. This point held in 2012 YLR 23-A & B.
16. That mere Abscondence of accused would not come in the way while granting bail, Any doubt that would arise in the prosecution case must be resolved in favour of accused, and Abscondence was never sufficient by itself to prove the guilt. This point held in 2012 MLD 574 KARACHI.
17. That investigation has been completed and challan has been submitted and Cheque already in custody of Investing agency and nothing to be recovered from the accused and the applicant/accused no more required for investigation. It was held that accused cannot be kept behind the bar as a punishment. Relied upon:
2010 P.Cr.L 1866,
2010 YLR 2982,
2008 MLD 160
18. That 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.
19. That pendancy of other cases of similar nature against the accused without showing the conviction therein is not sufficient to refuse discretionary relief of bail. This point held in 2009 P Cr L J 1420.
20. 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.
21. 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: 0 /09/13.
S M ZUBAIR
Advocate for the Applicant
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