This is a petition for quashing of proceedings pending against the petitioner in the Court of a Magistrate First Class, Lahore, on the basis of a complaint hied by the respondent against him under section 406/420/467/468, P. P. C. wherein after recording preliminary evidence the petitioner was summoned as an accused for an offence under section 420, P. P. C.
2. The simple facts giving rise to the case are that the respondent was running a poultry farm in an area measuring six kanals of land described in the lease deed (Annex 'A') which he executed in favour of the petitioner on the terms inter alia that the petitioner was to pay him a monthly rent of Rs. S7S on account of the poultry farm in addition to a sum of Rs. 25 per mensem as rent for adjoining piece of land measuring 11 kanals. He paid a sum of Rs. 3,600 as advance to be adjusted towards the rent of the last six months of the lease period terminable on the 6th of August 1975.
3. lt appears that having paid the rent for the months of August and September, the petitioner defaulted and subsequently on demand by the respondent issued two cheques on the 5th of December 1971, one for a sum of Rs. 1,000 and the other a post-dated one bearing the date 15th December 1971 for Rs. 800. The first cheque was presented by the respondent on 11th December 1971 and the second on the 22nd of December 1971, both having been dishonoured. From the allegations contained in the complaint it appears that the respondent again contacted the petitioner who assured him that he had already deposited the amount and the cheques would not be dishonoured if presented this time. Accordingly on 29th December 1971, the two cheques were again presented by the respondent but were dishonoured as before, presumably for the reason that no money to the credit of the petitioner was available with the Bank. Having in vain contacted the police for the registration of a case the respondent filed the complaint giving rise to the present petition.
4. The principal contention raised on behalf of the petitioner before me was that the allegations even if taken to be correct on their face value did not disclose the commission of an offence under section 420, P. P. C. inasmuch as the essential ingredient, namely, delivery of property by the person deceived was absent. It was further submitted that none of the illustrations contained in section 415, P. P. C. is attracted to the circums tances of the case and in fact the petitioner like an honest and straightforward person never denied his liability to pay and that the default inevitably occurred owing to the pecuniary embarrassm ent of the petitioner on account of the general slump in the market. In support of these contentions reliance was placed on several authorities. The first of these is Gul Jamal Khan and another v. Shah Jahan Khan (1) in which on the basis of Riasat AH v. State (2), Saeed-ud-Din Qureshi v. State (3) Ratra v. Ganesh Das (4) and [8] H. K. Shaw v. Suresh Chandra Mitter (1) the view taken by the learned Judge was that the mere fact that a post-dated cheque was dishonoured did not amount to an offence of cheating. Accordingly the petition for quashing of proceedings filed by the accused persons was allowed. The facts of that case were that the petitioners and respondent has business connections, the latter having supplied cotton to the former in Kharif 1968. On the Settlement of accounts a sum of Rs. 4,000 was found to be outstanding against the petitioner. He issued a post-dated cheque which was later dishonoured on the ground that he had no personal account with the Bank on which it was drawn.
The next authority is Ch. Riasat Alt and another v. The State, wherein the same position was reiterated by Shaukat Ali, J. In paragraph 3 of the Judgment his Lordship reproduced the following observations from M. M. S. T. Chidambaram Chettiar v. Shanmugham Pillai (2) without naming this authority or otherwise indicating that it was a quotation:-- "A post-dated cheque in payment of goods already received is a mere promise to pay on a future date and a broken promise is not a criminal offence, though it may amount in certain business relations to discreditable behaviour." , This authority was discussed by H. T. Raymond, J. in Saeeduddin Qureshi v. The State, also relied upon by the learned counsel for the petitioner. The following observation contained therein appears to be most relevant:-- "But quite apart from this ruling it is a well-established principle of the Criminal Law that the mere fact that a cheque bounces is not sufficient for the purpose of establishing a charge of cheating. It must further be shown that the drawer of that cheque knew at the time that he drew it that there would be insufficient money to his credit in his Bank account on the day of encashment."
It may be observed that his Lordship was dealing with a revisional order of the Additional District Magistrate whereby he set aside the order of discharge passed by the trial Magistrate in a case under section 406, P. P. C.
The next authority pressed into service was Makmood-td- Hassan v. Imtiaz Khan and another (3).
The view taken by Ortcheson, J. was that enforcing civil liability through a criminal Court amounted to gross abuse of process of the Court. In that case, the complainant had appeared in the High Court and had clearly stated that he was only interested in the recovery of his dues, and had gone to the criminal Courts as he wanted to realise the money under the pressure of Criminal Proceedings, lt was in this background that the aforesaid observation was nade. The next authority Prithiraj Bacha v. The State (4), relied [9] upon was a criminal revision against the order of conviction recorded by the trial Court and upheld in appeal by the Sessions Judge. The learned Judges held that in order to constitute cheating it must be established that some one is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established in order to justify conviction for cheating. Although, their Lordships had tried to explain the statutory provision contained in section 4I3 wherein cheating had been defined, yet it is clear that their Lordships were not dealing with a case under section 561-A for quashing of proceedings. The next authority Abdul Awal Chowdhoury v. Muhammad Watiullah (1) also dealt with a conviction under section 420, P. P. C. and as such would not be quite relevant for the purpose of this case. The last authority relied upon by the learned counsel Saifur Rehman v. The State and another (2) again. was a/ criminal revision directed against the order of conviction recorded by the trial Court and upheld by the Sessions Judge. The late Ilahi Bux Khamisani, J. held that a representation on the basis of which the person transferring, the property was induced to transfer his property must be false and was the sine qua non of the offence of cheating. In the case before his Lordship there were no allegations that the accused had made a false representation to the complainant before he was induced to part with a huge amount.
5. Having considered the contentions raised by the learned counsel for the petitioner I am of the view that even if prima facie the petitioner might have a good case on merits with reasonable chances of acquittal, there is hardly any justification for this Court to usurp the jurisdiction of the trial Court which at this stage has merely summoned the petitioner as an accused person after having recorded some preliminary evidence, with the utmost respect it may be observed that no hard and fast rules can be laid down that in all cases where post-dated, cheques are' dishonoured, the petition for quashment should be invariably allowed merely on that account. I am in respectful agreement with H. T. Raymond, J. whose observations from Saeeduddin Qureshi v. The State have already been reproduced above. It has been repeatedly held by their Lordships of the Supreme Court that where an altenative remedy is available to an accused person the invocation of the inherent powers of this Court under section 561-A, Cr. P. C. will be wholly unjustified. Reference in this connection may be made to Ghulam Muhammad vJ Muhammad Khan (3). It is hardly necessary to add that even if after having recorded evidence led by the complainant the trial Court comes to the conclusion that a prima fade case is made out against the petitioner justifying the framing of charge, a lega remedy would still be open to him to challenge that order. Surely it is not one of those straight cases wherein without bringing all thi [10] relevant material on the record one could at once jump to the conclusion that no case whatever was made out.
6. For all these reasons I dismiss this petition and direct that the record may be returned to the trial Court for proceeding with the trial in accordance with law. It may further be clarified that no observation made in this order may be construed as a finding to the prejudice of either party. .