Applicants above-named have filed the above Petition for quashing proceedings pending against them in the Court of Civil Judge and 1st Class Magistrate, Badin, under section 420/34, P. P. C.
Arising out of F. I. R. No. 32/79 dated 11th June, 1979, on the following facts and grounds.
2. That the applicant No. 1 is widow of Hakim Salimullah Khan a Displaced Person, inherited agricultural lands bearing survey Nos. 23 (6-30), 24 (7-19), 25 (9-11), 26 (7-38), 27 (7-26) and 28 (4- 11) totally measuring 43 acres 15 guntas, situated in Deh Sangi, Taluka Tando Bago, on the death of her husband on 12th June, 1972.
3. That she being a Pardanashin lady, without any issue, was not in a position to look after the aforesaid property and permanently handi-capped on account of Asthama, agreed to sell the aforesaid land at a throw away price of Rs. 20,000 (Rupees twenty thousand), to the Respon--dent No. 2, vide sale agreement dated 22nd September, 1973.
4. That with the execution of the sale agreement, the Respondent No. 2 (vendee) paid her as earnest money a sum of Rs. 3,000 (Rupees three thousand) only; whereas the balance of the consideration money was payable as under :- Rs. 7,000 in the month of January, 1974.
Rs. 10,000 by 31st December, 1974.
5. That the applicant was liable to execute the sale-deed in favour of the vendee, respondent No. 2, on payment of the entire balance amount as stipulated above.
6. That the vendee, respondent No. 2, during the stipulated period paid only Rs. 7,000 (Rupees seven thousand), but failed to pay the remain--ing amount of Rs. 10,000 (Rupees ten thousand) till today.
7. That the vendee, respondent No. 2 being not in a position to pay the balance of the consideration money, viz. Rs. 10,000 (Rupees ten thousand) and to fulfil the terms of the agreement of sale-dated 22nd September, 1973, voluntarily approached the applicant, with one Mr. 6hularn Muhammad son of Allah Rakha Memon, resident of Taluka Digri, District Tharparkar and-asked the applicant to grant the said land on Muqata to the said Ghulam Muhammad. Muqata agreement was executed by the applicant in favour of the said Ghulam Muhammad, at the instance of the Respondent No. 2 on 2oth March, 1974 on four-rupee non-judicial stamp paper, which was purchased by the; Respondent No. 2 vendee, for Ghulam Muhammad Memon. The Respondent No. 2 has also signed the Muqata Agreement as witness,
8. That the respondent No. 2 requested the applicant to refund the amount of Rs. 10,000 which he had paid to her, as earnest money and Rs. 7,000 as the first instalment.
9. That although the applicant was not bound, either in law or morally to refund the aforesaid amount, she had assured the Respondent No. 2, that she will do so, when her financial position enable her to do so. Ghulam Muhammad Memon the Muqatadar had entered into a Sale- Agreement dated 14th June, 1976 with the applicant, to purchase the lands for Rs. 43,500.
10. That on 9th August, 1977 the Respondent No. 2 approached the applicant and her bother at Hyderabad and assured her, that he will help her in realising the Muqata amount from Ghulam Muhammad Memon provided the applicant appoints her as her attorney. The applicant being a victim of unfortunate circumstances agreed to the proposition and the respondent No. 2. Got her signatures on typed stamp papers making her to believe it as deed of power of attorney.
11. That the applicant finally sold the land to Ghulam Muhammad Memon, vide sale-deed dated 15th October, 1971; registered with the Sub---Registrar, Math, Sind on 15th October, 1978.
12. That the applicant on receipt of the price of the land from Ghulam Muhammad Memon refunded the amount of Rs. 10,000 to the Respondent No. 2, against receipt dated 22nd October, 1978.
13. In spite of above factual position, according to the learned counsel of the applicants, Respondent No. 2 lodged a complaint against the applicants under section 420/34 at Police Station, Pengrib, District Badin, consequently Police challaned the said case against the applicant, in Court of Civil Judge and F. C. M. Tando Bago, who issued bailable warrants against the applicants. The said warrants were served on applicant No. 2, who is on bail, whereas said warrants were not served on applicant No. 1, till filing of above Petition and consequently applicants filed the above petition for quashment of said proceedings against them, on the grounds mentioned in above petition.
14. The learned Advocate for the applicants in support of the above petition submitted as under :-
(a) That above petition is maintainable, in spite of the fact, that applicants have not moved application under section 249-A, Cr. P. C. Before the learned trial Court, as the complaint in question has been filed mala fidely in order to harass the applicants and to pressurise them to accede to illegal demands of the Respon--dent No. 2, in spite of cancellation of agreement of sale between the parties, as envisaged by receipt dated 22nd October, 1978, executed by respondent No. 2. In support of this contention the learned Advocate for the applicants relied upon unreported decisions of this Court in Cr. Miscellaneous Appln. No. 783/81 and Cr. Miscellaneous Appln. No. 1043/79.
(b) That complaint in question is as a result of sale agreement between the parties and was filed after lapse of over six years and as such basically of civil nature and F. I. R. In question does not even prima facie make out case of cheating. At the most, even if respon--dent No. 2 assertion are believed, they would amount to breach of contract on the part of applicant No. I at the most and allege non---refund of money alleged to have been paid by respondent No. 2, in connection with the said transaction and as such a civil dispute between the parties. Therefore the learned Advocate for the apple--cants submitted, that the cognizance of case taken by the learned trial Court amounts to abuse of the process of the said Court and as such the said proceedings are liable to be quashed. In support of this contention also learned Advocate for the applicant relied upon above-mentioned two unreported cases.
15. The learned Advocate for Respondent No. 2, submitted that above petition was not maintainable in view of decision of Hon'ble Supreme Court reported in 1979 SCMR p. 94 and further F. I. R. Does disclose offence under section 420, P. P. C.
16. I have carefully considered the above submissions made by the learned Advocate for the applicants and learned Advocate for the respon--dent No. 2. Nobody appeared on behalf of the State in the above matter.
17. I have gone through the F. I. R. In question, which is annexure `F' to the above petition. This F. I. R.
Has been lodged after lapse of over 6 years and very reading of the same shows a civic dispute between the parties, in respect of allege breach of sale agreement committed by applicant No. 1, in respect of certain lands. Applicant No. 1 is permanent resident of Hyderabad and is alleged to be gardanashin and sick lady, whereas applicant No. 2 is permanent resident of Karachi, whereas complaint in question has been filed at Tando Bago. Ingredients of cheating are not made out from the contents of F. I. R. In question and as such I see great force in the contention of the learned Advocate for the apple--cants, that complaint in question has been filed mala fidely at Tando Bago, to harass and pressurise the applicants and as such in my opinion above petition is maintainable, as held in two unreported cases of this Court, which are mentioned herein before.
8. From the assertions made in F. I. R. In question offence of section 420, P. P. C. Is not at all made out and as such taking cognizance of the said case and issuance of process against the applicants amounts to abuse of the process of the learned trial Court, in my opinion, specially as respondent No. 2 waited for over 6 years from the date of sale agreement to file the complaint in question, and dispute between the parties really relate to alleged breach of sale agreement of 1973, between the applicants and respondent No. 2.
19. Therefore I allow the above petition and quash the proceedings pending against both the applicants under section 420/34, P. P. C. In the Court of Civil Judge and F. C. M. Badin, in case arising out of F. I. R. No. 32/1979 dated 11 June, 1979 and discharge the bail bonds, if any, executed by the applicants.