This criminal miscellaneous application is directed against the proceedings instituted in the Court of the learned Civil Judge and F. C. M., Sehwan; upon a complaint filed by respondent No. 2 alleging that he had been cheated. The learned Magistrate, after holding a preliminary enquiry, in which he examined the complainant and two witnesses, issued proves against the applicant in respect of an offence under section 420, P. P. C. It would appear that subsequently the case was transferred to the Court of the learned Mukhtiarkar and F. C. M., Sehwan, who framed a charge against the applicant in respect of an offence under section 420, P. P. C.
2. The facts which form the background of this application are that property hearing No. C-354, comprising of a shop, in the town of Sehwan, was transferred to Mst. Zakia Begum wife of Syed Mukaram Ali on the basis of a deed of Association with the original transferee of the property, Mr. Tamsal Ahmed Askari. The applicant is said to have entered into an agreement with respondent No. 2 for the sale of this property, including a bungalow, which is alleged to be standing on this property. The agreement for sale was in writing and was duly witnessed by one. Wasoomal, while the agreement, which was in Sindhi, was written by Petition-writer Rajab Ali Earnest money to the extent of Rs. 1,000 was paid by respondent No. 2 to the applicant towards the sale price of the property and the balance of the sale price, amounting to Rs. 6,000, was to be paid within 2 weeks. It is the case of respondent No. 2 that despite efforts on his part, the applicant failed to complete the transaction by executing a sale deed, and that subsequently, it was discovered that neither the property belonged to the applicant nor he had any authority to sell the same. In these circumstances, respondent No. 2, on 29-11-1971, filed a direct complaint against the applicant, and as already stated, the learned Civil Judge and F. C. M., Sehwan, before whom the complaint was filed, issued process against the applicant, after holding a preliminary enquiry.
3. Mr. M. L. Shahani, the learned counsel for the applicant, has supported the application for quashment of the proceedings against the applicant on the ground that neither the complaint nor the evidence tendered in the preliminary enquiry disclosed the necessary ingredients of an offence of cheating. He submitted that this was purely a civil dispute and- that respondent No. 2 had resorted to criminal prosecution in order to pressurise the applicant to return the amount of earnest money, which in fact forms the central dispute between the parties. The learned counsel further submitted that the applicant is ignorant of Sindhi language in which the agreement of sale was written and consequently he did not know, when signing it, as to what were its contents. The learned counsel has produced before me a true copy of the P. T. O. Issued in favour of Mst. Zakia Begum in respect of the shop in question. He also relied upon the power of Attorney, copy whereof has been filed with the application, in support of his submission that the applicant had authority to deal with the property, including the power to sell the same.
4. The learned counsel finally submitted that respondent No. 2 had not only filed a civil suit in respect of the same matter but that the suit had since been decreed and execution proceedings have been taken out. He accordingly contended that the real issue between the parties being of a civil nature the criminal proceedings are really in the nature of a lever to put pressure on the applicant and to further harass him and therefore amount to an abuse of the process of the Court.
5.Mr. Sabihuddin, the learned counsel for respondent No. 2, on the other hand, contended that there was adequate material to show that neither the shop nor the bungalow, both of which the applicant had agreed to sell to respondent No. 2, belonged to the applicant nor did he have any right to sell the same, as the power of attorney relied upon by the applicant only gave him power to manage the property and do certain other things in respect of the same but did not authorise him to sell the property.
6. In support of his contention that where civil proceedings have been initiated or taken, criminal proceedings in respect of the same matter would amount to abuse of the process of the Court and such proceedings should be quashed, the learned counsel relied upon the decision of their Lordships of the Supreme Court in Abdul Majid v. Nawab Din (1973 SCMR 373). This ruling, in my humble view, does not support the learned counsel. In the reported case it was held that the dispute between the parties was of a civil nature and that the criminal proceedings were lodged with the intent to bring pressure to bear upon the other party for settling the civil disputes which .Had arisen between them. Their Lordships of the Supreme Court, in arriving at this assessment of the true position, took note of the fact that the criminal proceedings were taken after 6 years of the incident and only when the other side had obtained an interim order from the High Court in his favour in second appeal. In the instant case, the allegations are that the applicant dishonestly made dishonest representations to respondent No. 2, which representations are reflected in the sale agreement, that the shop and the bungalow belonged to his father and he had power of attorney to sell the same. It was not disputed by Mr. Shahani that the shop 'does not belong to the father of the applicant. In fact, the P. T. O. Produced by him shows that it has been allotted to and is in the ownership of Mst. Zakia Begum. Furthermore, a perusal of the power of attorney prima facie shows that the applicant was not authorised to sell the shop but only to manage the same.
7. I also find no substance in the contention of Mr. Shahani that the real dispute between the parties is the refund of the earnest money which respondent No. 2 admits to have demanded back from the applicant while travelling with him in a bus from Boobak to Sehwan. The mere fact that this amount was demanded back does not mean that no deception was practised upon or dishonest misrepresentation made to respondent No. 2. As already pointed out, it is the case of respondent No. 2 that the applicant, in the sale agreement, had falsely represented that the entire property, inculding the bungalow, was in the ownership of his father and he bad power of attorney from him to sell the same. It may be mentioned here that so far as the bungalow is conkerned; the learned counsel for respondent No. 2 submitted that it in fact had been allotted to some other person and that the applicant has no connection with that person. He further submitted that although respondent No. .2 was in possession of that bungalow, he has been ejected there from by the lawful allottee. Mr. Shahani, on the other hand, submitted that in fact the bungalow was nothing else but a mere upper floor on a room which was a part of the shop. Be that as it may, it is apparently the case of the respondent No. 2, and he seems to be supported in this behalf by the sale agreement, that the bungalow also was to be sold to him by the applicant who claimed that it belonged to his father.
8. Mr. Shahani also submitted that the charge framed against the applicant is not legal. A defective charge, however, can be modified or altered by the trial Court at any time under section 227, Code of Criminal Procedure. Reference may also be made to section 225 of the said Code which provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission or it has occasioned failure of justice. Any error in the charge, moreover, is curable w under section 537, Cr.
P. C., unless it has occasioned failure of justice.
9. Mr. Shahani finally contended that the circumstances in which the complaint against the applicant has been filed and the proceedings against him taken are suggestive of intent on the part of respondent No. 2 to harass the applicant and consequently amount to an abuse of the process of the Court. He cited certain authorities in support of his submission that this was a fit case for quashment of the proceedings against the applicant. The first authority cited by him was of the Dacca High Court in Abdul Awal v. Muhammad Waliullah (PLD 1961 Dacca 53). 1n that case it was held that the test in cases of cheating is not what the accused did months afterwards but what was in his mind at the time when, and under what circumstances, he received the money.
This authority, in my view, is of no assistance to the applicant as the allegation against him is that at the time of the sale agreement he made false and dishonest representations to respondent No. 2.
10. The second case relied upon by the learned counsel for the applicant is that of Juiguard v. State (PLD 1963 Kar. 868). In that case it was held by a learned Single Judge that criminal cases entirely based on contractual liability can best be decided by a civil Court that enforcing of such civil liability by Criminal prosecution amounts to an abuse of the process of the Court. The statement of law made in this authority cannot possible be questioned but the facts of the reported case are quite distinct from the facts of the present case, as in the reported case there were no allegations of dishonest representations being made by the accused while such allegations are made in the instant case.
11. The learned counsel also relied upon two decisions reported in 1971 P Cr. L J 1296 and 1329. In the first of these two cases, it was held that mere failure to return a loan does not necessarily mean any dishonest intention on the part of the accused. I would respectfully agree with this observation.
However, this is not a mere case of refusal to return money, but as already stated, the allegation is that the earnest money was obtained on false and dishonest representations. In the second of the cases reported in this volume upon which Mr. Shahani relied, it was held that mere failure to deliver bargained goods and prevarication on the part of the accused did not amount to a criminal offence and that neither the complaint filed by the complainant nor his evidence disclosed criminal offence. Again, I would observe that this ruling does not apply to the facts of this case.
12. Mr. Sabihuddin, the learned counsel for respondent No. 2, has relied upon two authorities in support of his submission that this is not a fit case for quashment of the proceedings against the applicant. The first case relied upon by him is Rashid Hussain v. Muhammad Ismail (1976 P Cr. L J 673). In that case, the accused person in 5 transactions purchased wheat and issued cheques in payment but the cheques were dishonoured because there was no balance of the accused with the Bank. It was observed that the question whether at the time of issuing cheques, the accused did or did not have any intention to make payment depended on evidence yet to be recorded by the trial Court., On this basis, the application for quashment was dismissed. The contention that this was a case of mere civil liability was also repelled.
13. The second case relied upon by Mr. Sabihuddin is that of Ghulam Ahmed v. Muzzamil Khan (PLD 1967 SC 30). In that case, it was held by their Lordships that inherent jurisdiction conferred upon High Court under section 561-A. Cr. P. C., should normally be invoked only where another remedy is not available and that the mere fact that a long period has expired since the initiation of criminal proceedings against an accused person is no ground for quashing the criminal proceedings.
14. Their Lordships of the Supreme Court, in Man Chard v. State (1968 S G M R 310) have held that "determination of the guilt or innocence of the petitioner will eventually depend on the totality of the facts and circumstances revealed during the trial". Since that stage had not yet been reached, their Lordships dismissed the application for quashment which was filed on behalf of Gian Chand.
15. I might finally refer to the decision in Muhammad Yamin v. State (1973 SCMR 622). In that case, it was urged before their Lordships that there was no evidence worth the name against the petitioner, as he was neither named in the F. I. R. Nor in the confessional statement and that the only evidence against him was that he was shown in the records of the Telephone Department to have booked two telephone calls to one Mr. Butt who was alleged to have been convicted by the London Court. That evidence, it was contended before their Lordships, was wholly inadequate to make out a prima jack cage against the petitioner. Repelling this arguments, Muhammad Gut, J., on behalf of the Supreme Court held as follows :-- "We are not impressed by the argument. The mom fact that the Petitioner has been formally charged under certain penal provisions of law does not necessarily mean that he stands convicted or condemned. He has merely been put on notice of the allegations against him to help him to prepare his defence. If, as it is argued on his behalf, there is no credible evidence to connect the petitioner with the despatch of the offending consignment from Karachi to London then he has nothing to be afraid of and then there is no reason why the trial Magistrate should not record a judgment of acquittal in his favour. However, that may be, it is not denied that some evidence has been produced which tends to conned the petitioner wit the incident. Therefore, it is not a case of total want of evidence. This precludes interference by this Court at this stage. Accordingly we dismiss this petition."
16. The upshot of the above discussion is that I find no merit in t application which is accordingly dismissed: Since the proceedings before the learned trial Court have already been unduly delayed I direct that the should be taken up on priority basis and they should be disposed of urgently and the trial be preferably held from day to day.