SHAFT-UR-RBHMAN, J.-Leave to appeal was granted to examine whether the act of the appellant in giving a post-dated cheque which was dishonoured, amounted, on the facts of the case, to a criminal offence.
2. The appellant, who had been doing business with the firm of which the respondent was employed as a clerk issued a cheque for a sum of 10,000 for encashment on 20-9-1977 as part payment towards his liability of over Rs. 31,000. The cheque was presented on the due date in the appropriate Bank but was dishonoured with the remarks "refer to drawer". This happened on 27-9- 1977. The respondent instituted a criminal complaint in the Court of Ilaqa Magistrate 1st Class, Bhakkar, District Mianwali, where be carried on the business, and made a grievance that the appellant had dishonestly and fraudulently issued a post-dated cheque knowing full-well that he bad no money in the account and that in this manner the complainant respondent was deceived by him and the act of the appellant squarely fell under section 420, P. P. C. On 17-11-1977 the Magistrate summoned the appellant as an accused under section 420, P. P. C . Finding a prima facie case against him. The appellant without waiting for further proceedings before the Magistrate moved an application under section . 561-A, Cr. P. C. Seeking quashment of the proceedings on the ground, among others, that on the facts admitted and :closed in the complaint no offence whatsoever was made out.
3. The learned Judge in the High Court dismissed the claim of the appellant observing as follows :- "From the contents of the complaint it is quite clear that the petitioner had issued a post-dated cheque which was dishonoured when presented. Prima facie offence under section 420, P. P. C.
Was made out. It is not a fit case for quashment of the proceeding. Dismissed."
4. The learned counsel for the appellant has contended that from the background of the dealings between the parties it was abundantly clear that they had dealings in business, had a running account and that liability of the appellant on the date the cheque was issued exceeded Rs. 31,000.
It was in part settlement of that claim that a post-dated cheque was issued. By its very nature a post-dated cheque is a mere promise to pay and if funds could not be made available for honouring the cheque no criminality, muchless under section 420, P. P. C., could be attributed to the appellant. The learned counsel for the appellant has referred to a number of decided cases in order to contend that it was a fit case where the proceedings should have been quashed.
5. As the challenge to the proceedings was made before any evidence was recorded, we have to confine the consideration of the case to the com--plaint and what i3 disclosed therein. The concluding para of the complain makes two facts very clear. The first is that the accused against whom the complaint had been made had fraudulently and dishonestly issued the cheque knowing full-well that he would not be in a position to arrange the amount. The other was that the complainant was by this act of the appellant was cheat--ed or defrauded. The provisions of section 415, P. P. C. So far as relevant for the purposes of this case require that there should be fraudulent or dis--honest inducement. Further the person induced should be deceived. Finally the deception should be of the nature to prompt the person induced to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. In the complaint there being disclosure with regard to the first two requirements of the law and the third being a matter of evidence it cannot be said that if the complaint is accepted as correct and true so far as the facts alleged therein are concerned, no offence at all of any type is disclosed.
6. In the case of Sheo Saran Vaish v. Jitendra Nath Das (AIR 1928 Oudh 292), two decrees were being executed during the course of which a sort of settlement was arriv--ed at between the decree-holder and the judgment-debtor as a part of it a post-dated cheque was issued which was dishonoured. Subsequently towards the same decree in satisfaction of which a post-dated cheque had been issued, a part payment was received and execution proceedings were revived.
On the facts of the case while dealing with the prosecution of the judgment-debtor for issuing a post-dated cheque and thereby committing the offence of cheating the learned Judges held as follows "These facts lead to the irresistible inference that the cheque was not, to the knowledge of the decree-holder, issued in token of the immediate satisfaction of the decree as an accomplished fact, but only as a security and as a measure of accommodation to enable the judgment-- debtors to provide means for the honouring of the cheque within a convenient period of time after issue or to otherwise satisfy the decree. Fraudulent or dishonest intention did not accompany the act of issuing the cheque. This inference is clearly strengthened by the further fact that before any criminal prosecution was launched the decree-holders revived the execution proceedings and attached the judgment-debtors' property on 16th February 1927."
It was concluded that on the facts stated the element of fraud or dishonesty must be held to be absent in this case, nor did the Court find any trace of the further element of the person deceived delivering any property to another person or consenting that such other person shall retain any property.
7. In the case of M. M. S. T. Chidambaram v. Shanmughan Chettiar (AIR 1931 Mad 129) a post-dated cheque was issued which was dishonoured. A complaint under section 415, P. P. C. Etc. Was filed and also a civil suit for the recovery of the amount. The learned Judge on facts concluded as follows := "On the facts stated it is clear that they were not. The post-dated cheque was given on 23rd March, 1937 and dishonoured on 5th April 1937 (an interval of 13 days) but no suit was filed until 9th August 1937 (a further delay of four months). Moreover, to establish the offence of cheating, the complainant would have to show not only that he was induced not to file a suit for 13 days but that this induced omission on his part caused or was likely to cause him some harm or damage in body, mind, reputation or property-which are presumed to be the four cardinal assets of humanity.
The complaint does not even assert that such harm or damage was caused or was likely to be caused, and it is obvious from the circumstances that no such harm or damage was or could have been caused", and quashed the proceedings.
8. In the case of H. K. Shaw v. Suresh Chandra Mitter (AIR 1936 Cal. 324), the whole process of trial under section 420, P. P. C. Had been undergone, conviction recorded and sentence imposed. It was during the course of appeal that it was held that no offence under section 420, P. P. C. Was committed and the convic--petition and sentence was set aside.
9: In the case of R. A. Ratra v. Genesh Dass ( A IR 1936 Cal. 324) admitting the allegations in the complaint as correct it was found that on the complainant's own show--ing the cheque given to him in part payment of money already advanced by him and not in consideration of anything done or which he refrained from doing at the time when the cheque was issued. It was also held that on the facts disclosed by-the complainant the wrong done to him was purely of civil nature and no case of cheating was made out. It was on these findings that the recommendation made by the Sessions Judge was accepted and the accused was discharged.'
10. In the case of Keshavji Madhavji v. Emperor (AIR 1930 Bom. 179), post-dated cheque was issued on 20-9-1928. It was dishonoured. On being prosecuted the accused were convicted under section 417 read with section,109, I. P. C. Their convic--petition and sentence was maintained on the ground that the facts disclosed that the three accused acted in concert throughout the transaction and that the dishonest intention arising from the knowledge that the cheque would not and could not be paid on 20th September must be imputed to all of them alike.
11. In the case of Shanti Lal v. State (A 1 R 1956 Madh. Bha. 19it was held that "intention of the drawer at the time the cheque is issued is a material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal course it would be prima facie proof of the intention to cheat".
12. In the case of Abdul Karim Butt v. Abdul Qayyum and another (1972 P Cr. L J 1182where the post- dated cheque was dishonoured, it was held that on the allega--tions contained in the complaint prima facie the ingredients of an offence under section 415, P. P. C. Could be spelt out. Hence the Court refused to quash the charge framed in the case.
13. From the decisions referred to all, relating to post-dated cheques, it is clear that the law cannot be laid down so broadly as to hold that in every case of post-dated cheque no offence of cheating would arise and that it would remain a civil transaction. It appears that the intention of the drawer of the cheque and his knowledge have to be ascertained from the evidence led at the trial and not merely from the complaint or recials therein and also in what manner and to what extent the person who was given the cheque was induced or defrauded. As already pointed out the complaint as filed by the respondent is accepted as correct in its entirety does disclose this, imputed) fraudulent intention to the appellant and it was mentioned that by such an act of the appellant the respondent/complainant was cheated and defrauded.
14. This Court has in more than one case set out the principle to be applied for quashing the initiation of criminal proceedings. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354) it was held that : "Quashment of proceedings at so early a stage gives an unfortunate im--pression of stifling of criminal prosecution, by exercise of an extra--ordinary power which is given for the dispensation of complete justice, in the forms provided by law."
15. In the case of Gianchand v. The State (1968 SCMR 380it was held "that the determination of the guilt or innocence of the petitioner depends on totality of facts and circumstances revealed during the trial" such a determination at the complaint or before the evidence is concluded is neither possible nor to be preferred.
16. There is another aspect of the matter. There is a remedial provisio which has been introduced in the Criminal Procedure Code by Law Reform Ordinance, 1972. It is section 249-A. It enables an accused facing trial to obtain an order of acquittal from the Magistrate if at any stage the charge is found to be groundless or there is no probability of the accused being con--victed of any offence. The substance of the claim made by the appellant in the application under section 561-A, Cr. P. C. Is exactly the same on which he can claim an acquittal under section 249-A namely that the charge is groundless and that there is no probability of the accused being convicted of any offence. This is a relief still available to the appellant not in any manner in curtailment of the power possessed by the Court under section 561-A, Cr. P. C. Or in derogation of it.
17. We are, therefore, clear that the High Court in refusing to quash the proceedings under section 561-A, Cr. P. C. Has not exercised the discretion in an arbitrary or perverse manner to invite interference by this Court. 1f the appellant is prosecuted it is not without his own fault because the allegations as made in the complaint and yet to be proved are that he acted dishonestly, fraudulently cheated and defrauded the complainant. The observations made therein shall, in no manner, affect the merits of the adjudication or the decision of tile various objections which the appellant may possibly take before the trial Magistrate in his defence or for the purposes of rebutting the allegation, of the respondent-complainant. The appeal is dismissed.