This is a petition under section 561-A, Cr. P. C. For quash--ment of proceedings pending against the petitioner in a criminal case for offences under section 406/420, P. P. C. In the Court of a learned Magistrate at Mianwali. The complainant/respondent lodged a report with the police against the petitioner. According to the petition, the final opinion of the police was in, favour of the petitioner.
Therefore, the complainant was constrained to file a complaint in tine Court of the learned Magistrate. The petitioner haying beets summoned to, stand trial, has filed, his petition seeking quashment of the proceedings.
2. The allegations in the complaint against the petitioner are contained in para. 2 thereof the same is reproduced below :--- "that in April 1.968 the accused Ghulam Muhammad Shah contacted the complainant company who had dome surplus wheat lying in its godowns. Ghulam Muhammad Shah accused represented that he is wife to purchase the wheat weighing 2446 maunds 15 seers. On the representation of the accused, the complainant agreed to sell the Wheat to the accused. The accused made inducement to the complainant and referred the name of Colonel Zulfiqar Khan.
The accused agreed to pay, the price of the wheat at the rate of Rs. 16 per maund. Thus on the inducement and representation of the accused the wheat weighing 2446 maunds 15 seers was handed over to the accused on 14-4-68 against the receipt issued by him. The accused promised to pay the price of the wheat amounting to Rs. 39142 plus Rs. 336 as the price of the wheat bags.
The accused delayed the payment without any reason and ultimately on 15-7-68 issued two (7) cheques No. K./A. 9766452 dated 15-7-68, for Rs. 336 drawn on a Bank in Kundian Colony. When these cheques were presented to the Muslim Commercial Bank, Chashma for encashment, the complainant was informed vide letter No. 445 (Gen) dated 15-7-68 that the accused who holds account No. A. C/ 44 in the Bank had prohibited the bank from making this payment. This action of the accused amounts to cheating, defrauding and misappropriating of money which is punishable under sections 406 and 420, P. P. C. The accused has misappropriated the wheat stock of the complainant and also defrauded the complainant of Ra. 39,478 dishonestly and has brought the wheat and its price to his personal nee."
3. In the petition, two main grounds were raised firstly that the proceedings have been delayed before the learned Magistrate, and secondly that essentially it was a civil matter which was being dragged in a criminal Court. Learned counsel for the petitioner has not pressed the question of delay presumably because of the counter-allegation, against the petitioner as being responsible for the delay, made in para. 4 of the affidavit submitted by the respondent.
4. The main contention of the learned counsel for the petitioner is that the matter is essentially of civil nature, and, therefore, it should not be allowed to proceed in a criminal Court. He has relied on R. S. Ratra v. Ganesh Dase (AIR 1940 Lah. 93), Sheo Saran Vaish v. Jitendra Nath Das (AIR 1928 Oudh 292) and Ganpat Dattu Raskar v. Emperor (AIR 1930 8oM199) to contend that neither the offence of cheating nor that of criminal breach of trust can be said to have been made out against the petitioner. Learned counsel for the respondent has on the other hand cited Ali Hussain v. State (1968 P Cr. L J 1734). In none of these cases it was held that no matter what the circumstances of the case may be whenever there is a question of (post-dated) cheque involved the criminal Court must stay its hands off: In my view, the question of guilt or otherwise of the accused even in cases involved in (post-dated) cheque, can and must be decided on the facts and circumstances involved in individual cases. The question of intention has to be determined after the evidence is led before the Court. I therefore, do not agree with the learned counsel that because cheques are involved in this case, therefore without giving an opportunity to the complainant to produce his evidence the proceedings must be quashed.
5. After going through the complaint, I have come to the conclusion that if all the allegations made therein are ultimately, after recording of the evidence, found to be correct it would not be possible to hold that no offence has been committed. The following allegations in particular, are of significance: -
(a) Thus on the inducement and representation of the accused the wheat were handed over to the accused.
(b) The accused promised to pay the price of the wheat.
(c) The accused delayed the payment without any reason.
(d) The accused issued two cheques on 15-7-68 but had prohibited the bank from making this payment.
(e) This action of the accused amounts to cheating, defrauding and misappropriating of money.
(j) The accused has misappropriated the wheat stock of the complainant and also frauded the complainant of Rs. 39,478 dishonestly and has brought the wheat and its price to his personal use.
Learned counsel for the petitioner has tried to explain that the eat pression used in the complaint "This action" of the accused refers only to the issuing of the two cheques.
Without giving an opportunity to the respondent to examine witnesses in support of the complaint, it is not possible to give any definito finding o0 this question. However, it may be remarked that the expression "This action" can be interpreted in both ways: firstly the issuance of the cheques only, and secondly the main items of conduct of the accused, namely, the receipt by him of the wheat on the basis of certain representations and inducement, the issuing of the cheques by him and the last allegation that the accused "mis--appropriated the wheat stock" and defrauded the complainant of Rs. 39,478. As to which interpretation is to be adopted cannot be decided without recording the complainant's evidence. Similarly it will be premature without the evidence having been recorded to give a finding that ether the allegations are false or that the guilty intention cannot be attributed to the petiticler. In such like cases, the matter cannot be decided without record--ing the evidence. It is not the purpose of the proceedings under section 561-A, Cr. P. C. To go into the details of the facts so to give a finding without affording opportunity to the parties t lead evidence. Obviously evidence cannot be recorded in the proceedings and without recording the evidence the question involved in this case cannot be decided. The only circumstance that the case also involves a civil dispute is got enough to qua the proceedings. The standards laid down by their Lordships o. The Supreme Court in the case of Ghulam Muhammad v. M0 Khan and others
(i) are not satisfied in this case. I find no men in this petition and the same is dismissed.