' WAQAR HASSAN MIR, J.---By way of this single order, I intend to dispose of this petition as well as Writ Petition No, 3149 of 2009, as in both these petitions, the parties .Are the same and the case also pertains to the same police station.
2. :Through these petitions, the petitioner seeks quashment of F.I.R. No, 971 of 2008, dated 28-9-2008 and F.I.R. No, 749 of 2007, dated 17-8-2007 offence under section 489-F, P.P.C. Police Station Qilla Gujjar Singh, Lahore got registered by respondent No, 2 against the petitioner.
3. The short history as put forth by the learned counsel for the petitioner in both these petitions verbatim is as follows:-- "The petitioner along with others entered into an agreement with the complainant and his wife, which was duly executed on 21-2-2007 for filling of beverages in their factory, for which the petitioner was to pay Rs, 7 per crate of beverages to the complainant. The agreement was for one year and was to start from 21-2-2007, in lieu of which the petitioner gave three cheques in total amounting to Rs, 2 million to the complainant as security and were to be refunded to the petitioner after the termination of the agreement. However, only after two months, the complainant forcibly evicted the petitioner from the factory premises illegally and unlawfully tried to encash the cheques (security) and after dishonour of the cheques, got registered the above-noted F.I.Rs, at Police Station Qilla Gujjar Singh against the petitioner."
4. The learned counsel for the petitioner submits that the cheques were given to the complainant as security for running the business of filling beverages and could not be presented to the banks for encashment before the termination of agreement; that there was an arbitration clause in the above-referred agreement and the learned Civil Court, Lahore has been moved for referring the dispute to arbitration. Further submits that the petitioner and his partner Mazhar Hussain Chaudhry went to the factory after the execution of the agreement dated 21.2.2007 and found that the electricity and gas connections stood disconnected and after spending huge amount, the petitioner succeeded in getting the connections restored after two months. In April, 2007, the petitioner tried to start the work in the factory but on the very first day, it was found that the machinery of the factory was out of order i.e, the "Capper" was not working properly and the raw material was destroyed. Further submits that when the respondent No, 2 was asked to get the machinery repaired and get the "Capper" replaced, nothing was done by the respondent No, 2 and his partners; that an application under section 20 of the Arbitration Act, 1940 was filed by the petitioner, which is pending in the Court of learned Civil Judge, Lahore wherein notice has been ordered and the last date was 3-3-2009. Further submits that as the machinery of the factory of respondent No, 2 was defective and no work was done in the factory by the petitioner, therefore, there was no liability on his part unless decided through arbitration proceedings because instead of setting the machinery in working condition, the petitioner was forcibly dispossessed; that it was purely a civil dispute between the parties, which has to be decided through arbitration and the process of criminal justice is not available to respondent No, 2, hence he has not got the above- noted F.I.Rs, registered with mala fide intention to blackmail the petitioner; that no offence has been committed by the petitioner and respondent No, 2 has circumvented the civil liability into criminal litigation illegally and unlawfully. Further submits that the petitioner is a retired government servant and has lost all the retirement benefits in an attempt to start the business in order to earn livelihood for his children due to the act of respondent No, 2.
5. On the other hand, the learned A.A.-G. Assisted by learned counsel for the respondent submits that through the parties were carrying business relations but the cheques were issued in case of default as security, therefore, respondent No, 2/complainant was well within his right to present the cheques before the concerned banks; that F.I.Rs, can only be quashed when those amount to abuse of process of law; that bare reading of both these F.I.Rs, shows that respective offences were made out qua every F.I.R.; that civil and criminal litigation can be instituted simultaneously.
6. While going through F.I.R. No, 971 of 2008, one can grossly come to the analogy that the factory namely Messrs Naqi Beverages (Pvt.) Ltd., Rahim Yar Khan was rented out to the petitioner @ Rs,2,50,000 per mensum and in this context, an lqrar Nama between the parties was written on 22- 2-2007, where three post-dated cheques of different dates were handed over to the complainant, whether these can be termed as . Security or not and that F.I.R. No, 749 of 2007 finds mention in the subject of present F.I.R.
7. Heard. Record perused.
8. For the quashment of F.I.R., the following grounds can be highlighted in a criminal case, upon which a criminal case can be quashed by the High Court exercising its Constitutional jurisdiction:--
(a) When the case is of no evidence;
(b) When the very registration of the case is proved to be mala fide on the face of record;
(c) When the case is of purely civil nature, criminal proceedings are not warranted in law, especially to harass the accused;
(d) When there is serious jurisdictional defect; and
(e) When there is unexceptional delay .In the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.
9. While looking into these F.I.Rs,, it is found that the petitioner according to record, had not issued the cheques the dishonest intention and at the time of presenting the same in the bank for encashment, he was also not liable to fulfil any of his obligations under the agreement of rent by the complainant as the agreement was for a period of one year and the cheques were issued in terms of security, not to be presented in the banks and refundable to the petitioner after the termination of the contract. Civil liability existed between the parties and the petitioner in lieu of the issuance of the same did not receive anything. Situation, therefore, had not changed even due to the dishonour of the cheque and the circumstances continued to exist as far as the payment of money to the complainant was concerned. Diversion of civil liability to criminal offence in present case seemed to be with mala fide intention and for ulterior motive. It is further estimated that section 489-F, P.P.C. Has been promulgated to punish those persons, who take loans on the basis of forged and fabricated documents or with intent to defraud a bank or financial institution with intention not to pay back the amount.
10. When prima facie no case is made out and when there is want of jurisdiction and when there is a sheer abuse of the process of law, in peculiar circumstances, High. Court under its inherent powers as well as in constitutional jurisdiction can quash an F.I.R. Or even proceedings for the matter.
11. In view of what has been discussed above, the registration of both these F.I.Rs, vide which no offence is made out and that if allowed to be continued will amount to the sheer abuse of process of law and Court. Further that both the F.I.Rs, aptly show that the petitioner had entered into an agreement of rent with the complainant and cheques issued were for the purposes of security and not against any obligation to be fulfilled or a loan, therefore, both the petitions in hand are allowed and the impugned F.I.Rs, bearing No, 971/2008, dated 28-9-2008 and No, 749 of 2007; dated 17-8- 2007 offence under section 489-F, P.P.C., Police Station QiIla Gujjar Singh, Lahore are hereby ordered to be quashed along with all subsequent proceedings.