By this application under section 561-A, Cr. P. C. Applicant Ghulam Sarwar has prayed that the proceedings under section 420, P. P. C. Pending against him in' the Court of the learned City and Sub-Divisional Magistrate, Hyderabed be quashed.
2. The facts leading to this application briefly are that on 17-6-1969, Ghulam Hussain respondent No. 2, filed a direct complaint under sections 420 and 406, P. P. C. Against the applicant in the Court of the Additional District Magistrate, Hyderabed, who transferred the same to the City and S. D. M., Hyderabed. This complaint was to the following effect:- "The complainant above-named begs to submit as under :-
(1) That complainant is the proprietor of Carvan Goods Transport Company, Hyderabad.
(2) That on 13-9-1966 the accused approached the comp--lainant and induced the complainant fraudulently to sell out the truck. The accused further represented that he would give truck value Rs.
9;000.00 and the remaining amount will be paid in the instalments.
(3) That on such representations the complainant sold out the truck for Rs. 37,000 with consent of Khaliqur Rehman and Ishaque. The accused gave the truck value Rs.9,000 and promised to pay the remaining amount in a monthly instalment of Rs. 1,500. All the negotiations took place in presence of witnesses.
(4) That the complainant handed over the truck to the accused who started plying on the road.
(5) That the accused failed to pay the instalments to the complainant. The complainant therefore approached the accused for the payment of the instalment but the accused showed his inability to pay the instalment and further promised to pay after sometime.
(6) That the complainant again approached the accused and asked him for a payment of instalment but he flatly refused.
(7) That the accused has fraudulently and dishonestly induced the complainant to part with the truck. Which lie would not have otherwise done, had he not been so induced and therefore the accused has committed the offence punishable under section 420/406, P. P. C. Within' the cognizance of this Hon'ble Court.
It is, therefore, prayed that this Honourable Court will be pleased to take action against accused according to law."
The learned Magistrate recorded the statement of the complainant under section 200, Cr. P. C. And held a preliminary enquiry in which he recorded statements of to witnesses, namely Sardar Khan and Mohammad Akbar, under section 202, Cr. P. C., and thereafter, issued process against the petitioner under section 420, P. P. C.
3. Alongwith the complaint ad application under sec--tion 516-A, Cr. P. C. Was also filed by the respondent No: 2, praying that the custody of the truck should be given to him. The learned Magistrate passed the following order thereon :- "The application is allowed. The truck No. 452-R. I. Being in custody of accused Ghulam Sarwar son of Fazal Elahi resident of Kali Road, Hyderabad is referred to be seized and kept in custody with S. H.
O., Market Police Station. The S. H. O., Market Police Station is accordingly ordered to take possession of the said being in the offence of cheating by the, accused.
The case under section 420, P. P. C... Is already registered against the accused.
S. H. O. To report compliance."
The petitioner has challenged this order of the learned Magistrate as well, on the ground that it- was illegal and without jurisdiction.
4. Mr. Mohammad Ali Shaikh, the learned counsel for the petitioner has contended before me that a bare perusal of com--plaint discloses no offence and that the dispute between the parties is only one relating to a breach: of a contract and of a civil nature. The learned counsel contends that this being the position, the proceedings against the petitioner are an abuse of the process of the Court and should be quashed. The learned counsel has relied on several, reported cases to show that when the dispute between the parties is one of civil nature criminal proceedings should not be allowed to proceed. In particular the learned counsel invited my attention to the cases of R. C. P.
Guignard v. The State and others (PLD, 1963 Kar.. 868), Mahmoodul Hassan v. Imtiaz Khan (PLD 1963 Lah. 481) and B: D. Cayford v. Masood Ahmed Shaikh and others (PLD 1964 Kar.. 69) Mr. Mohammad Ali. Shaikh also relied on the case of Jamadar R.I and others v. Emperor (AIR r1930 Pat.
504), to show that in case of a breach of contract the remedy of the parties lies by way of a civil suit.
5. While there can be no quarrel with the general proposi--tion canvassed by the learned counsel every case has to be considered on its own facts and no hard and fast rules can be laid down. It would be going to far to say that in every case where some property is involved, no prosecution would be Competent. Indeed, every case of cheating or criminal misappropriation could give cause of action for a civil suit but it does not necessarily mean that in that case criminal proceedings would not lie. In this case it is specifically mentioned in the complaint that the petitioner had fraudulently and dishonestly induced the complainant to' part with the truck which he would not have otherwise done." The complainant (respondent No. 2) has yet to examine his witnesses arid one cannot presume at this stage that he 'would not succeed in substantiating his allegations. One Syed Zakir Ali, who appears to be a witness of the negotiations between the, parties and is mentioned in the complaint is also to be examined; and one cannot anticipate as to what would be the nature of his evidence. Mr: Kazi Mohammad Azam Abbasi, the learned counsel for res--pondent No. 2, has contended that there are circumstances to indi--cate that from the very beginning the petitioner-accused had no intention whatsoever of making any payment to the complainant (respondent No. 2). This according to the learned counsel was obvious from the fact that not a single monthly instalment which was initially agreed upon had been paid by the petitioner to respondent No. 2. These are all questions of fact which can be gone info by the trial Court only after the evidence on either side is led. It would not be proper at this stage to intercept and quash he proceedings in a case like this when the complaint discloses a prima facie case and the evidence has yet to be recorded. This Court will not take upon: itself to decide disputed questions of fact and indeed, if it attempts to do so it would be usurping the jurisdiction of the trial Court accordingly, find no merit in this application for quashing the proceedings and it is hereby dismissed.
6. Mr. Mohammad Ali Shaikh's next contention was that in the event of his prayer for quashing -the, proceedings being rejected, at least the custody of the truck should be, given to him. The learned counsel contended that the order passed by the learned Magistrate regarding the seizure of the truck was without jurisdiction as the truck was not produced before the learned Magistrate. The learned counsel emphasised the words "produced before the Courts" in section 516-A, Cr. P: C: which reads as follows :- "When any property regarding which any offence appears to have been committed or which appears to have Been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry, or trial, and, if, the property is subject to speedy or natural decay;, may, after recording such evidence as it, thinks necessary; order it to be sold or otherwise disposed of"
A perusal of the learned Magistrate's order, however, shows that he has not "yet passed any final order under section 516-A, Cr. P. C. Regarding the custody of the truck. The impugned order, on the other hand, appears to have been passed. Under section 96(l),Cr.P.C, The learned Magistrate could, under the provisions of this section, direct the S. H. O. To search for the truck and `this power to search also implied the power to seize and/or to take possession of the truck when it was found on search.
7. In pursuance of the orders of the learned Magistrate the truck has been seized by the police and it is being kept in custody of S. H. O.; Market Police Station, Hyderabad. I would, order that the learned Magistrate should- direct the S. H. O. To produce the truck before him on the next day of hearing when, after hearing both the parties, lie should also consider as to what orders he should pass on the application under section 516-A, Cr. P. C. Filed before him by the complainant (respondent No. 2), of regarding the custody of the truck. If the petitioner is dissatisfied with these orders he shall at liberty to pursue his remedies and to challenge the orders of the learned Magistrate if he is so advised.
At this stage when the learned Magistrate has really not passed any final order on the application under section 516-A, Cr. P. C. Submitted by the respondent No. 2, this application appears to be premature and is accordingly, dismissed.