This application under sections 439 and 561-A, Cr.P.C, is directed against an order of Mr. Nadii AH Bhatti, P. C. S. City and S. D. M., Sukkur dated 25-5-1970, whereby he issued bailable warrants against the applicant in the sum of Rs. 5,000 with P. R. in the like amount on a complaint filed by Moinuddin under sections 406 and 420, P. P. C.
2. A bare reading of the complaint and the statement of the complainant before the Magistrate goes to show that he resorted to criminal proceedings against the applicant for recovery of an alleged amount of Rs. 11,000 which being a part of a bargain with regards to sale of certain buffaloes between the parties. The case of the complainant was that he is in business of buffaloes arid he knew the applicant since last 3-4 years who used to be visiting him at Sukkur very often and that 10 months before the lodging of the complaint he came to him at Sukkur and purchased 18 buffaloes from him for total sum of Rs. 18,000. The petitioner it is'alleged had paid Rs. 3,000 just on the spot and promised to pay the remaining amount of Rs. 15,000 through instalments at the rate of Rs. 2,000 per month and it is admitted by the complainant that the following instalments were paid by the applicant in the year 1969: "August - ' Rs. 1,000 ' - - 4 September Rs. 1,000 October Rs. 1,000 November Rs. 500 December Rs. 500."
It was complained that in spite of his efforts the applicant has not paid the remaining sum of Rs.
11,000 to him. He kept him on false promises, therefore, it is alleged that he has been cheated and his money has been dishonestly mis appropriated by the applicant "in violation of the contract and he has committed breach of trust and as such has committed an offence under sections 420 and 406, P. P. C."
I have heard Mr. Umar Khan Tank, Advocate for the applicant and Mr. A. H. Memon, Advocate- General for the State. Counsel for the applicant submitted that the allegations in the complaint are, with regard to certain instalments unpaid in respect of admittedly, of a civil transaction and the criminal Courts are not the proper agencies for the recovery of the civil debts. He also submitted that the Magistrate had no jurisdiction to take cognizance of this civil matter and the entire proceedings, he requested, amount to misuse of the process of Court which may be quashed, as the very complaint discloses no criminal offence. He relied on Hafiz Abdul Khaliq Rahmani v. Abdul Ghani and another (1) wherein it was held that resorting to criminal proceedings, four years after dismissal of civil suit, with object to coerce the petitioner to pay bad debt, amounts to an abuse of the process of the Court.
4. The learned counsel for the applicant next relied on J. S. Daver v. Iqbal Qadir and another (2). In that case the petitioner was employee of a firm Messrs Perviz Marwanjee Bomanjee Dalai of Karachi, certain contracts with regards to bonus purchase were entered between the firm where the petitioner was working and the respondent firm M/s. Peshawar Motors Limited through Iqbal Qadir, Managing Director. The petitioner after sometime left I the services of the firm while certain contracts remained to be unfulfilled between the two firms. The Peshawar firm's representative went to Karachi after sometime and tried to get the balance of the deposit from the petitioner as well as his firm but as the petitioner was no longer in service, he refused to make any payment and thereupon an application under section 420, P. P. C. was filed against the petitioner as well as his firm before a First Class Magistrate, Peshawar. The petitioner had to go to Peshawar in response to the summons of the Court but the complaint was dismissed in default against which a revision was filed before the District Magistrate, Peshawar, as well as a fresh complaint against the petitioner, process were issued and he had to appear in November 1961. The District Magistrate without serving any notice on the petitioner accepted the revision petition which was challenged before the High Court. The learned Judge while delivering the judgment incorporated the observations of Newsam, J. in the decision of M. M. S. T. Chidambaram Chettiar v. Shammughom Pillai (3): "The inherent jurisdiction of this Court to pass any orders necessary to prevent abuse of the process of any Court is not questioned and indeed has been clearly expressed in section 561-A,
(1) PLD 1970 Kar. 446 (2) PLD 1962 Pesh. 167
(3) AIR 1938 Mad. 129 Criminal P. C. Since prevention is always better than cure, the obligation to prevent spacious and spiteful criminal prosecutions for actions which, though strictly dishonourable, yet do not amount to Crimes, is one that must never be shirked. In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by civil Courts and are not crimes which can be punished by a criminal Court. Not every immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises."
5. For the benefit of Mr. Nadir Ali Bhatti, S. D. M., Sukkur let me quote the final observations, in that case of Mr. Justice Faizullah: "Before, I part with the case I would like to make some observations for the benefit of the Magistrates while dealing with private complaints not to allow their judicial conscience to be so easily moved as inthe instant case by automatically issuing summonses against the accused without carefully scrutinizing the complaint as to whether on the facts stated in the complaint any criminal offence is made out. The Magistrate before issuing processes to the accused in private complaints are under statutory obligation as contemplated by section 202 of the Criminal Procedure Code ,to satisfy themselves 'for the purposes of ascertaining the truth or falsehood of the complaint*1 and they should never permit civil litigation to be converted into criminal litigation."
6. Mr. A. H. Memon, Advocate-General appearing for the State fully agreed that the impugned order of the Magistrate is a gross misuse of the process of the Court as he did not apply his mind to the complaint to see whether any of the ingredient! of sections 406 and 420, P. P. C. are shown in the complain itself. And before issuing process it was his bounden duty tc give serious thought, to see whether any offence prima facie ii made out or not. As I have observed earlier the impugned orde: of the Magistrate on the face of it is nothing less than gros: misuse of the process of the Court. The petitioner has beet dragged from Karachi to Sukkur on a complaint which on tin face of it reveals a civil dispute between the parties, and for whicl the Magistrate should know that civil Courts are the prope forum.
7. For the reasons given above I accept this revision appli cation and quashing the proceedings and dismiss the complain and hope that the Magistrate will be very careful in future an will carefully scrutinize the complaints before resorting to issi process against a party. Revision is accepted and proceedin quashed.