1. This is an application for quashment of proceedings pending before the S. D. M., Nazimabad on a complaint filed by the respondent No. 1 under section 420/406, P. P. C. The complainant---s case was that be had placed an order for crushing machinery with the applicant but when the machinery was eventually supplied in February 1978 it was found to be defective and not in accordance with the specification. The complainant stated that he had entered into an oral agreement on the inducement of the accused. The details of the inducement are not given. The applicant states that no case is made out under section 420/406 on a mere reading of the complaint. The Advocate for the respondent urges that the applicant has rushed to the High Court without taking resort to section 249-A of Cr. P. C. Which could provide exactly the same relief to the applicant. There is no allegation of mala fide in the application for quashment and there is no other dispute pending between the parties. Mrs. Salima Nasiruddin, learned counsel appearing on behalf of the State supports the applicant as well as respondent No. 2, she states that no case of induce-- ment is made out in the complaint. But she further states that the applicant should have moved the trial Court first under section 249 of Cr. P. C. Before coming to the High Court.
2. Taking the different circumstances of the case in view, I am of the opinion that resort to section 249-A of Cr. P. C. Would have been more appropriate in this case as the contention of the applicant is that the complaint does not make out a case either of inducement or misappropriation. Section 249-A of Cr. P. C. Makes a provision that where a Magistrate is of the view that the charge is groundless or that there is no probability of the accused being convicted of any offence then the accused can be acquitted of any offence at any stage of the case. This being the position it was incumbent upon the applicant to move the trial Court under section 249-A of Cr. P. C. Reliance is placed upon 1979 SCMR 94 where the Supreme Court had observed "where equally efficacious remedy can be obtained under section 249-A of Cr. P. C. Then High Court should not interfere under section 561-A of Cr. P. C." I would therefore dismiss this application, but I will give a direction to the trial Court that in case the applicant filed the application under section 249-A of Cr. P. C. Then the same shall be considered in the first instance without any loss of time and before recording any evidence. The applicant has requested for a direction that the applicant may be exempted from appearance in the lower Court as he suffers from heart ailment. I do not think that a direction to that effect is needed as I am quite sure that application for exemption by the applicant would be considered by the trial Court on its own merits and if the applicant makes out a case for exemption then the same would be allowed to him. With these observations the application is dismissed.