1. ' This application has been moved for abashment of the proceedings taken against the present applicant in the case registered under section 406/420, P.P.C. As Crime No,19 of 1988 with Police Station 'C' Section, Sukkur.
2. ' Briefly the facts are that the complainant Nisar Ahmed Pathan had moved an application before the S.S.P. Which after enquiry was incorporated as above F.I.R. It is alleged that the complainant is the Area Manager in Agro Chemicals Limited, Sukkur and he keeps pesticides of the said company which are given to dealers on credit as per policy of the company. It is further alleged that on 1-7- 1987 the complainant had gone to withdraw money from the Allied Bank Qasim Branch, Sukkur in company of Dr. Ali Nawaz son of Sobho Khan where at about 10-00 a.m. The present applicant, who is the dealer of the above-said company also :came and asked for the supply of of pesticides from the complainant. The complainant obtained his signatures on necessary documents and received two post-dated cheques from him i,e, cheque for Rs,1,50,000 of 15-11-1987 and for Rs,70,000 of 20- 12-1987. He also got an undertaking in the hand-writing of the present applicant that he would make the payments according to the cheques and thereafter the supply of demanded pesticides was to be made. It is further alleged that the said cheques were submitted to the bank for encashment on the appointed dates but the same were dishonored. The complainant then approached the present applicant with the above-said witness and the present applicant promised to make the payment and requested that no legal action should be taken against him but after passage of sometime payment was not made and therefore, the complainant again approached the present applicant who denied to have taken any pesticides from him and also denied the execution and delivery of the said cheques. The present applicant is also said to have advanced threats to the complainant whereupon the complainant had made such application to the SSP Sukkur which was then incorporated in 154, Cr.P.C. Book and the case was challaned before the Court of SDM & City Magistrate, Sukkur as Case No,25 of 1988. An application was moved before the trial Magistrate under section 249-A, Cr.P.C. Which was dismissed and, therefore, this application under section 561-A, Cr.P.C.
3. ' Mr. Muhammad Daud Baloch, Advocate appearing for the applicant has submitted that obviously this is a case of civil liability inasmuch as the payments allegedly to be made under the said cheques pertained to the price of these pesticides delivered to the applicant. According to the learned counsel the cheques were delivered on 1-7-1987 for future dates and therefore, it cannot be said that on that particular date the present applicant had intended to cheat or defraud the present complainant or his company. According to learned counsel it cannot be said that on this date the present applicant could be held liable for the commission of the offence as alleged against him. It is submitted by the learned counsel for the applicant that all that is to be seen is whether there was any mens rea. He has laid much emphasis on the ground that there was no such intention of the present applicant on the date when he delivered the cheques. The learned counsel has placed reliance on the case of Muhammad Iqbal Toor v. Mian Muhammad Ashraf 1986 PCr.LJ 503 and the case of Muhammad Javed Ahmed v. Muhammad Ali and others 1987 SCM R 1750.
4. ' Mr. Sharafuddin Ada, learned counsel for the complainant has vehemently opposed the present application. He has submitted that section 249A, Cr.P.C. Would he applicable only after the charge is framed whereas in this case the case was challaned on 30-3-1988, copies of 161, Cr.P.C.
5. Statements were delivered to the accused on the same date and the case was fixed for hearing on 18-4-1988 but within a period of few days and before the framing of the charge this application under section 249-A, Cr.P.C. Was moved which is not maintainable at that stage. It is further submitted by the learned counsel for the complainant that ground No,2 as mentioned in the present application itself goes to support his contention that the present applicant had had the knowledge that he was highly indebted and could not have been able to pay such a huge amount of Rs,2,20,000 on the appointed dates and, therefore, issuance of the cheques by him was obviously with the intention of cheating the complainant and his company. The learned AA.-G. Mr. Muhammad Siddiq Kharal appearing for the State has also opposed the application on similar grounds.
6. ' I have given anxious consideration to the submissions of the learned counsel. It will be necessary to reproduce the provisions of sections 406 and 420, P.P.C. Which read as under:-- "406. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both."
7. "420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
8. ' It is also necessary to reproduce the provisions of section 415, P.P.C. Wherein cheating has been defined. Section reads as under:- "415. Whoever, by deceiving any, person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause harm or damage to that person or any other person in body, mind, reputation or property is said to "cheat".
9. From the above provisions of law it may be observed that in order to determine mens rea it has to be assessed if on the particular date when these cheques were handed over to the complainant, the applicant/accused had the intention to commit cheating as envisaged in section 415, P.P.C. In.
10. Order to come to such determination it will be necessary to consider various factors such as whether the applicant had any such source from which he could have got such a huge amount to make the said payments or any other evidence of the like manner is to be brought on record. In this behalf as referred to by the learned counsel of complainant ground No,2 of the present application is quite material wherein the applicant himself has made an admission that his liabilities were quite huge amounting to about Rs, five lacs which he owed to various parties and that he was intending to move an insolvency petition before the competent Court. The first case of Muhammad Iqbal Toor v. Mian Muhammad Ashraf cited by the learned counsel for the present applicant does not apply to the present case as in that case the point under consideration was whether the Court before which the case was pending had the jurisdiction in the matter. The second case of the Hon'ble Supreme Court which is cited by the learned counsel for the applicant is applicable to the present case but the same goes against the applicant. The Hon'ble Judges of the Supreme Court in this case had observed:-- "The High Court disposed of this contention of the petitioner in the following words: ' In my opinion, it is a question for the trial Court to consider after assessing the evidence whether petitioner's agreement to pay the money in installments amounted to an admission of having misappropriated the money entrusted to him or would it be civil nature matter. I would, therefore, not like to go into this aspect of the case at this stage. This petition is dismissed."
11. ' The learned counsel for the petitioner has before us addressed the same argument as was put forward in the High Court i,e, that the acknowledgement of the liability and the undertaking to discharge the same made the transaction as one of a civil nature and prosecution under section 420/406, P.P.C. Was misconceived.
12. ' The question whether an act of a person is criminal or civil depends primarily on his intention. The intention is to be gathered from all the attending circumstances including the transaction itself. It cannot be laid down as principle of law that simple acknowledgement of liability to pay converts what is otherwise an offence under section 420/406, P.P.C. Into a claim of civil nature. In order to gather the intention, the attending circumstances and the conduct of the parties has to be examined in the context of the transaction itself. This necessarily requires evidence or material. The view taken by the High Court and the stage at which it had been taken appears to be eminently justified and we do not consider this case at all a fit one for interference by this Court. Hence, leave to appeal is refused,"
13. Moreover it may be observed in this case that the application 'under section 249-A, Cr.P.C. Was moved even before framing of the charge and any action with regard to abashment of the proceedings at this stage would amount to stifling the criminal proceedings at the earliest stage which is not warranted in law. I am, therefore, inclined to follow the above-cited case of the Hon'ble Supreme Court and dismiss the present application. However, the applicant will be at liberty to move fresh application if after recording of some evidence such grounds do arise.