1. This is an application under section 561-A, Cr. P. C. For the quashment of the proceedings pending under sections 420 and 406, P. P. C. Against the applicant in the Court of Additional City Magistrate, Karachi.
2. The applicants and respondent Syed Waris Ali were on friendly terms and visited each other. The respondent filed a complaint under sections 420 and 406/109, P. P. C. On 10th May 1969. In this an allegation was made that in the year 1963 he lived in Lalukhet No. 8 while Raza Ali applicant No. 1 lived in Paposhnagar in June 1963 the applicant came to his residence and induced him to give him a sum of Rs. 1,000 on the pretext of his financial difficulties and painted his position very miserable. On account of their friendly connections and on the recommendation of Syed Usman who was present be advanced Rs. 1,000 as loan on 12th June 1963. Later on also he advanced a sum of Rs. 700 to the applicant. Thus the total amount was Rs. 1,700 which the applicant had promised. To pay but he never paid in spite of the demand made by him and it was postponed on one or the other pretext. However, in the meantime the respondent went away to India and returned in July 1964, and he contacted the applicant who repeated the promise for the return of the loan. One day in the last week of December 1964, the applicant invited him to his residence where the remaining three applicants and Mst. Safia Sultana daughter of Ahsan Ali applicant No. 3 were present. The applicant No. 4, Mst. Akhtari Begum introduced the respondent to her daughter Mst. Safia Sultana and during the table talk' the applicants expressed their intention to give Mst.
3. Safia Sultana in marriage to him and asked him to initiate the matter through his elders according to the custom. He accepted the proposal and the betrothal was subsequently arranged and per-- formed in the house of applicant No. 1. According to his social standard he gave clothes and ornaments and a few other articles worth Rs. 1,000 to the applicants. It was agreed that the rukhasti would be performed after a reasonable period of about to months. However, this period was extended from the and he was asked by the applicants to bear the expenses of both the sides in case he wanted the marriage early. He; agreed to this and thereafter he as well as the applicants started no the goods and material for the marriage and the preparations also were started. He, therefore, spent Rs. 3,500 for the purchase of the dowery and continue to give clothes for his said girl on every Eid and their value amounted to Rs. 500. During the preparation the applicant fixed the date of rukhasti on Eid in the year 1967 but subsequently lie, was ' told that the pre--parations which had been made and the dowery which was collected were not upto the standard of their family and, therefore, the matter was postponed till the retirement of applicant No. 3 from service.
4. He retired in the year 1968 and again he approach--ed the applicants to fulfil their promise but some excuses were put forth and finally in the month of June 1968, they refused to marry and also refused to return the -amount of Rs. 1,700. So it was alleged that the applicants from the very beginning they had no intention to repay the loan' or give the girl in marriage to him and, therefore, they had cheated him and extorted money from him by practising fraud upon him. So he served a notice dated 22-8-68 upon Raza Ali applicant.-No. 1 and he also received. a reply in which the claim of the respondent was refuted.
5. The learned Magistrate after recording the statements of the complainant issued process under sections 406 and 420, P. P. C. Against the applicants. The applicants 1 and 2 are brothers while applicants 3 and 4 . Are their parents. Aggrieved by this the present application was filed to quash the proceedings. It was pleaded that the respondent had filed a false case to harass the applicants and the allegations were of defamatory nature. It was further pleaded that the respondent had indulged in making false imputations to harm the honour of the family and, therefore, a complaint under section 499/500 read with section 34, P. P. C. Was' filed against him and to others on 28-8-68 and that case is still pending and as a counterblast the respondent filed the false case against them.
6. From the statement of facts it is clear, that to kinds of allegations have been made against the applicants. The first allegation is against applicant No. 1 only who was said to have induced the respondent to lend money with a promise to return and that amount was never repaid. This is altogether a different transaction and the remaining applicants had nothing to do with it, and no allegation was made against them in the complaint filed by the respondent. So there could be no question of any common complaint against all the applicants nor there can be joint trial. However, this question is not material at this stage but what I have to consider is whether it is a case of cheating to fall within the mischief of section 420, P. P. C. On the basis of the allegations which had been made in the complaint unable to find that any criminal offence was committed in respect of the amount which was lent to applicant No. 1: It was a pure and simple loan. Admittedly the parties were on friendly terms which was the sole consideration for advancing the loan. There was no question of any deception having been practised upon the respondent. Simply because the loan was not returned does no necessarily mean that the applicant No. 1 had any dishonest intention at the the when the loan was taken by him. This ma be one of the circumstances to be considered in addition to some other evidence indicating misrepresentation, but no such mis--representation has been alleged in the complaint.
7. So far the second allegation that the applicants induced him to part with some money and other articles on the representation that they would give the girl in marriage to him, it was urged by the.
8. Learned counsel that a false allegation was made as a counter--blast to the complaint which was filed under section 500; P. P. C. Against the respondent. At this stage it is neither possible nor proper to enter upon the analysis of the merits on the basis of the allegations and counter-allegations.
9. The determination of this dispute requires evidence which has yet to be recorded. The very fact that the applicants have filed a complaint for defamation in pursuance. Of those allegations is itself a ground to refrain from expressing ay view on the merits of the case as any such view is likely to prejudice the respondent at his trial in case it is accepted that the respondent made false allegations in order to harass the applicants. It may be true that the respondent filed the complaint about 8 months after the complaint for defamation was filed against him, . But at the same the it cannot be ignored that the respondent had given a notice making the same allega--tions earlier than the complaint filed against him. The implication of these circumstances can only be considered in the light of the evidence which may be adduced by the parties. Consequently I am unable to bring myself to agree that a case has been. Made out calling for interference by this Court under its inherent powers.
10. However, one thing needs mentioned here. The learned, Magistrate had, issued process under section 420, P. P. C. As well as 406, P. P. C. But there could be no question of the application of section 406, P. P. C. As according to the allegations the deception had been practised upon the respondent. There exists a clear distinction between the nature of the offences contemplated by the to sections. In a case of criminal breach of trust there is entrustment of the property whereas in the case of cheating there is no trust but the property has been obtained by practising deception.
11. So the at of cheating bears no resemblance with the at of entrustment of the property. It, therefore, follows, that the issuance of process under section 406 was misconceived.
12. With these remarks the application is dismissed.