1. ' By this application the applicant Ishtiaq seeks the quashment of criminal proceedings pending against him under section 420/506, P.P.C. In the Court of S.D.M. Saddar (South) Karachi, being the outcome of Private Complaint No,27 of 1990 filed by the respondent No,1 on 1-2-1990.
2. ' The facts in brief are that the respondent No,1 Vakeel Ahmed filed a direct complaint against the applicant under section 406/420/506, P.P.C. In the Court of Assistant Commissioner and S.D.M.
3. Saddar Karachi, on 1-2-1990. In his said complaint he stated that he was induced by the applicant to invest the amount in a Firm in London for handsome profits and upon such inducement the respondent No,1 invested the sum of Rs,1,32,312 by way of advertisement, Rs,17,688 were paid towards the telephone bills, fares and other miscellaneous expenses. It is also stated that the applicant had promised that he would make all such payments within 30 days from the date of first advertisement. On such assurances the applicant paid advertisement charges of Rs,1,32,312 to various newspapers. The first advertisement appeared on 29-7-1988, in the daily News.
4. ' It is also stated in the complaint that the applicant failed to pay any amount towards the expenditure/investment made by the respondent No,1, over a period of 1-1/2 years. He has also stated in his complaint that he was not only cheated by the applicant but also committed criminal breach of trust and misappropriated the amount. It was also mentioned that on 28-1-1990 when the respondent No,1 visited the office of the applicant he was threatened with dire consequences.
5. On such complaint of the respondent his statement under section 200, Cr.P.C. Was recorded not on the same day but on 4-2-1990. The case was then adjourned for preliminary enquiry and the statements of witnesses Akhtar Khan and Humayun Qureshi were recorded on 10-2-1990. On the same day the learned S.D.M. Saddar Karachi passed an order in the following words:- "Being satisfied after having recorded the statement under sections 200 and 202, Cr.P.C. That prima fade there appears that the person complained Mr. Ishtiaq of Climiax Motors, Karachi, has committed offence punishable under section 420/506, P.P.C. Register the case and issue B.W. In the sum of Rs,5,000 with a P.R. Bond in the like amount."
6. ' It is contended by the learned Advocate that the bare reading of the complaint filed by the respondent No,1 did not make out a case of cheating or criminal breach of trust and if at all there was any liability, against the applicant, the same was of civil nature and not a criminal one. He has also contended that ultimate conviction is not possible keeping into consideration all the attending circumstances. It is also contended by the learned Advocate that the respondent was unknown to the applicant and it is unbelievable that merely on verbal assurances and inducement the respondent would invest a huge amount over advertisement and the telephone calls. No documents whatsoever have been filed by the respondent/complainant to substantiate his allegations in the complaint. It is also contended that the process has been issued for offence under sections 420 and 506, P.P.C. An offence under section 506, P.P.C., is distinct and could not be committed in the same transaction. According to him the issuance of process therefore, on the face of it is mala fide and speaks of improper application of mind by the learned Magistrate. It is also contended by the learned Advocate that the respondent No,1 who alleged that he was induced and cheated by the applicant to part with such huge amount did not make any effort to file report with police or a complaint before the Magistrate of the area concerned, but filed it before the S.D.M. Saddar Karachi, who was friendly with the respondent No,1 and process was issued.
7. ' The learned Advocate has on the facts and circumstances of the case placed reliance on Syed Afzal Hussain v. The State 1984 P Cr. L J 2371 and contended that the dispute between the complainant and accused, if any, was of civil nature and that the F.I.R., did not disclose commission of offence under section 406/420, P.P.C. Nor it would lead to conviction of accused and the continuance of proceedings was held to be abuse of process of Court in the circumstances and the proceedings were quashed. He has also placed reliance on Barkatullah and another v. The State and Allahdin 1990 P Cr. L J 993. It was observed that the criminal proceedings initiated on a complaint which does not disclose a criminal offence amounts to abuse of process of the Court and the proceedings were quashed on the ground that the dispute between the parties was of civil nature and resort to criminal proceedings was abuse of process of Court. Reliance is also placed on Ghulam Ali v. Jawed and another 1989 P Cr. L J 507. In this judgment also the proceedings under sections 406/420 and 506, P.P.C., were quashed on the ground that the complaint showed that there were business dealings between complainant and accused and no question of breach of trust was involved. It is also observed that the transaction was of civil nature and the complaint was filed to harass the accused and it was not likely to end in the conviction of the accused.
8. ' The respondent No,1 was not being served and by order dated 4-3-1991 it was directed that the respondent be served by pasting the notices at his last known address and also at the Court notice board. This was done and respondent did not appear.
9. ' Mr. Habibur Rashid, the learned State counsel has contended that the very complaint shows that the respondent No,1 had invested the amount in business and for which reference is made to the advertisement and the bills of telephones etc. By the respondent. He has also contended that there is no cheating and inducement on the part of the applicant which may have resulted into parting with or delivery of any property by the respondent. He has also contended that since process for section 406, P.P.C. Is not issued, he would not further argue the point of entrustment or the breach thereof. He has however, argued that an offence under section 506 even if committed by the applicant was not in the same transaction in which the alleged offences under section 406/420, P.P.C., were committed. According to him the learned S.D.M., should not have taken cognizance of the offences which were totally of civil nature and no criminal liability was spelt out. He concedes to the quashment of proceedings.
10. ' I have considered the arguments of the learned Advocates, gone through the record of the complaint, the statements in preliminary enquiry and the process order issued by the S.D.M., Saddar on 10-2-1990. The bare reading of the complaint shows that the investment of amount, if any, was made by the respondent in a Firm "Redshield" 23 Layden Street, London E1-7 LE, England.
11. The amount of investment is by way of advertisement, payment of telephones bills and the other expenses. It is nowhere shown that the amount was paid by the respondent/complainant in cash to the present applicant or that any inducement was made by the applicant whereby the advertisements were issued. The statement of the complainant under section 200, Cr.P.C. Also shows that the applicant had induced him on which he issued advertisements in various newspapers for investment in a Firm in London which would pay huge dividends. Likewise the witnesses Akhtar Khan and Muhammad Humayun have also not said a word about cheating if any or inducement by the applicant or delivery of any amount by the respondent to the applicant.
12. From the perusal of the complaint, all that transpires is that a Firm in London invited investment on huge profits and the applicant may have suggested to the respondent No,1 to advertise the name of that Firm through newspapers. This would not show that the applicant was the recipient of any benefit out of such investment by the respondent No,1 or that the expenditure if any made by the respondent through advertisements was in consequence of cheating by the applicant and dishonest inducement on his part. No offence under section 420, P.P.C. Seems to have been made out from the facts of the case and the respondent/complainant seems to have resorted to the mechanism of criminal proceedings so as to pressurise the applicant to pay up the amount if any spent by the respondent No,l. The offence under section 506, P.P.C. Is not made out under the circumstances. The offence under section 506 is distinct offence and was not committed in the same transaction and could not be tried with offence under section 420, P.P.C. The case cannot ultimately result into conviction and the continuance of proceedings would therefore, be abuse of process of law.
13. ' Accordingly I allow this application and quash the proceedings pending against the applicant under section 420/506, P.P.C. Before the S.D.M., Saddar Karachi.