This is an application for quashment of private complaint proceedings under section 4684:ifi, P. P.
C. Instituted by Pervaiz Subhani complainant/respondent against Mst. Bismillah Begum.
Accused/applicant on 29th July, 1980 in the Court of Additional Cit\- Magistrate Karachi (Gulberg Police Station).
2. The complaint states that the complainant's sister Mst. Almas Paiker was the owner of Bungalow No. C-12/10, Federal "--B" Area, Karachi, which she had agreed to sell to the accused/applicant at a very low price and it had been mutually agreed that full amount of the sale price shall be paid to the complainant at the time of the execution of sale agreement, dated 7th January, 1979. It was further stated that at the time of agreement the complainant was paid only the sum of Rs. 2,20,000 as the accused had shown her inability to pay the full price of Rs. 5,20,000 at that time and that she had promised to pay to the complainant the balance on the next day or within 25 days at the maximum. The com--plaint further shows that the complainant's sister was approached, by broker S. Farooq Ali and believing the words of the broker the com--plainant's sister signed the transfer application addressed to the K. D. A. She had made it clear to the accused/applicant that she will not utilize the joint transfer application unless and until the total amount of Rs. 5,20,000 was paid to the complainant within 20 days. The complaint does not show as to when the transfer application was signed by the transferee Kist. Almas Paiker and it does not further show as to what representation had been made by the accused/applicant to Mst. Almas Paiker. This para of the complaint only show; a particular direction given by the complain--ant's sister Mst. Almas Paiker to the accused/applicant. The complainant has not shown in this para whether he was present at that time or not. It is significant to note that the broker who gave the undertaking has not been made a co-accused ; and further neither the broker nor Mst. Almas Paiker are shown even as witnesses in complaint.
3. 1t is further stated in the complaint that the payment of Rs. 3,00,000 was not made to the complainant's sister and an allegation is made that first the complainant has been cheated and then fraud has been committed with her. There is no explanation in this para as to how the complainant who is not a party to the transaction has been cheated by the accused /applicant and how the fraud was committed upon Mst. Almas Paiker by the applicant/accused- The basis of the cheating is later on shown in the complaint to be that the transfer documents addressed to K.
D. A. And signed by the transferor Mst Almas Paiker was, fraudulently utilized in getting the name of applicant/accused being mutated as the transferee of the property from K. D. A. Without making the payment of Rs. 3,00,000. The complainant has given a reason for not making an F.I.R. Before the Police by saying that son of the accused /applicant is an influential Government servant, but the name of that Government servant is not shown.
4. The learned counsel for the applicant, Mr. Azizullah K. Shaikh has argued that there is a genuine dispute in respect of the balance of payment of Rs. 3,00,OOOas the applicant/ accused claims that she paid the balance to the complainant/respondent at the time of securing the transfer documents from her while the complainant alleges that there was no payment made. Mr. Azizullah K. Shaikh submits that in any case the matter is of a civil nature and at the maximum it may, amount to the allegation of failure to make the balance payment. He therefore contended that the process of the criminal Court was being, misused by the respondent in order to pressurize the applicant/accused.
5. I do not find any justification on record for the submission of Mr. Azizullah K. Shaikh that the balance of payment was made to com--plainant as there is no receipt of Rs. 3,00,000 produced by the appellant; accused and it is not conceivable that a sum of RS 3:00,000 would be paid by the applicant to the complainant/respondent without securing any receipt for the same, when the applicant had secured a proper receipt and a proper document at the time of payment of lesser sum of Rs, 2,20.000. However, this observation is only of a tentative nature and I want to make it clear that the parties' position it civil litigation should not be prejudiced by any observation, which I have made above either way. I, however, find force in the submission of Mr. Azizullah K. Shaikh that the complaint appears to be designed to force the petitioner to make the payment of Rs. 3,00.000 to the complainant. I find that in the complaint there is hardly any representation or cheating alleged to be made by the applicant and the only representation, which is shown to have been made in para. 5 of the complaint is of S Farooq Ali broker and the same cannot be taken to be a representation made by the applicant/ accused. The further allegation in that para. 5 is that the accused/applicant had been directed by Mst. Almas Paiker not to use the transfer document until she makes payment of the balance of Rs 3,00,000, but a direction of the complainant cannot amount to any representation by the accused/applicant and an action in failing to follow that direction cannot be deemed to a fraudulent act and at the most it may amount to a breach of contract of promise to pay the balance amount.
6. However, what is more important is that the agreement of sale, which is admittedly executed on 7th January, 1979 between Mst. Almas Paiker and Mst. Bismillah Begum clearly shows that a sum of Rs. 2,20,000 was paid to the complainant at the time of execution of the agreement and a receipt for that amount has been separately issue by the com--plainant's sister Almas Paiker, who is the real person involved in this dispute. The important para of the sale agreement in para. 2 where it is provided that the remaining balance of Rs. 3,00,000 shall be paid by the vendee (applicant) to the vendor (complainant's sister) within 25 days from the date thereof at the time of approval of direct transfer and issue of final transfer fee challan of the said property from the K. D. A., Karachi. This paragraph clearly shows that no amount out of the balance consideration of Rs. 3,00,000 was to be paid to Mst. Almas Paiker by the applicant at the time of signing of transfer documents, which were addressed to K. D. A. And it was only after the transfer application had been approved by the K. D. A.
That the balance of consideration was to be paid and consequently the statement in paragraph 5 of the plaint appears to be in conflict that the agreement between the parties as contained in paragraph 2 of the agreement dated 7th January 1979. It therefore, appears to me that the complainant was trying to set up a different case of oral agreement from the one which visualized between the parties in the agreement of sale and I could venture to say that such an oral agreement after the written agreement between the parties can hardly be a basis of criminal prosecution.
7. I have enquired from S. A. Latif, the learned counsel for the respondent/complainant to explain to me as to how a case under sec--tion 468 or 420. P. P. C. Has been made out in the complaint. Mr. M.
A. Latif replies that even if para. 2 of written agreement is considered as the final and binding agreement between the parties even then there has been a failure on the part of the applicant/accused to pay the balance of the consideration during last 1i years even after the transfer documents had been approved by the K. D. A. We are not however concerned in a criminal case of cheating and forgery where there has been in fact a mere failure of promise to pay, which is a matter for the Civil Court to consider A as the Criminal Courts are merely to consider if there has in fact been any forgery and in this case the learned counsel for the respondent Mr. Latif cannot point out to any circumstance which could lead to the conclusion that a forgery was in fact made. The transfer document was signed by the complainant's sister in pursuance of the agreement of sale and it was submitted to the K. D. A. In pursuance of agreement of sale, therefore, neither at the time of signing of the document of transfer by Mst. Almas Paiker there was any forgery or misrepresentation or fraud by the appellant nor even at the time of submitting the said document before the K. D. A. Authorities there was any forgery or fraud. What happened thereafter is a matter of civil Court to determine, as it is possible that a party, which was honest and genuine in making a promise to pay may later on become deficient in its promise for various circumstances. But that does not make the party liable to an action under criminal law. Mr. M. A.
Latif has relied upon PLD 1976 Lah. 727 where it was observed that written documents should be liberally construed. The observation in that decision appeared to the effect that the intention of the party should be carried out and the document should be upheld and the words in a document should be made subservient and not contrary to intention. I do not know in what manner the learned counsel wants to rely upon the observation made in the Lahore case. The whole complaint has almost been, reproduced by me and the complaint does not show anywhere any misrepresentation having been made by the applicant/ accused and even in the agreement which I have referred to there is no clause which could show that the applicant/accused had committed a fraud in obtaining the transfer document without payment of the balance price. I therefore did not see any force in the submission made by Mr. M. A. Latif.
8. Mr. M. A. Latif further contended that the accused has not persisted beyond the statement of the complainant and registration of the case under section 420/468, P. P. C. And therefore, it is not the stage for quashment of proceedings particularly in view of the fact that the applicant has avoided to submit herself to the process of the Court. The basis of this submission is that the applicant had made an application before the Criminal Court that she should be allowed to appear through some one and she should be allowed an exemption from appearance, but that application was rejected and thereafter the applicant moved the Sessions Court in respect of the same. But there too her prayer was rejected. Since the applicant had been pursuing her remedy although she has not been successful in that matter, it does not mean she had not submitted herself to the process of the Court. I therefore, do not find any justification in this submission of Mr. M. A. Latif as well.
9. The result is that I am of' the view that the criminal proceedings initiated by the respondent/complainant were designed to bring pressure upon the appplicant/accused to make the balance of the payment without there being any specific allegation in respect of any forgery or misrepre--sentation or fraud having been committed by the applicant/accused and' that mere failure to make payment within time does not involve any criminal intention. In these circumstances, the proceedings in the lower Court pending against the applicant under section 420/468, P. P. C. Are hereby quashed.
10. Mr. Rashid Tariq appeared for the State and has opposed the application for quashment vehemently and had merely stated that he opposed the application vehemently, but on account of the reasons stated by me above I do not agree with his submission.
11. This application is, therefore, allowed.