' This petition under section 561-A, Cr.P.C. Has been filed seeking quashment of proceedings in a complaint under section 420/468/471/506, P.P.C. Pending against the petitioners in the Court of a Magistrate 1st Class, Multan. The complainant in the case is respondent No,1 in this petition who is father-in-law of the petitioner No,1.
2. Precisely the facts are that the petitioner No,1 married with Mst. Farah Bibi daughter of respondent No,1 on 25-11-1984. The dower as contained in the Nikahnama was paid in the form of ornaments of the value of Rupees one lac. It was undertaken by the petitioner No,1 as a condition to the contract of marriage between petitioner No,1 and daughter of respondent No,1 that the former shall house his wife in a bugalow having an area of four Kanals. Apart from the entry of the condition incorporated in Nikahnama, a separate agreement, dated 20-11-1984 was also executed by the petitioners in this behalf. A son was born out of the wedlock in 1986 and thereafter relations between the spouses became strained, as a result of which Mst. Farah Bibi left the house of petitioner No,1 in April, 1988. She later on filed a suit for the recovery of dower money including an amount of Rs,1,00,000 already paid and the price of four Kanals of land. Two separate suits for maintenance of Mst. Farah Bibi and the infant child were also filed. However, the suit for recovery of dower money was subsequently withdrawn and a private complaint under section 468/471/420/506, P.P.C. Was filed by respondent No,1 alleging therein that by virtue of agreement dated 20-11-1984 the petitioners promised to transfer four Kanals of land in the name of Farah Bibi immediately after performing the Nikah, but subsequently they avoided to fulfil the terms of agreement and to transfer the land in the name of Mst. Farah Bibi on false pretext. The petitioners in the written statement to the suit before the Family Judge, admitted that they did not own any land at the time of execution of agreement in question. It has been alleged in the complaint that petitioners by way of preparing a false document committed forgery and fraud.
' The complaint was filed on 25-6-1989 and after recording the preliminary evidence the learned trial Magistrate vide order dated 26-7-1989 summoned the petitioners to face the trial for an offence under section 420/468/471/506, P.P.C. The charge was framed against the petitioners on 2- 10-1989 and since then the trial is pending with no progress. It is stated that an application under section 249-A, Cr.P.C. Moved by the petitioners in August, 1989 is still pending for disposal before the trial Magistrate.
3. The learned counsel for the petitioners contends that the Nikahnama and agreement are genuine documents and cannot be termed as forged documents to create a criminal liability. He urged that criminal prosecution in the matter involving a civil dispute is misuse of the process of law and Courts.
4. The learned Additional Advocate-General has supported the quashment of the proceedings in the complaint on the ground that no case of forgery, fraud or cheating is made out in the facts of the case.
5. The learned counsel for the respondent in support of the complaint argued that the petitioners promised for transfer of four Kanals of land in the name of Mst. Farah Bibi, the daughter of respondent No,1 but admittedly the petitioners without having any land in their name executed the agreement in question which falls within the definition of false document constituting an offence.
He has forcefully argued that the petitioners knowingly, with the intention of cheating, executed the agreement in question and committed an offence under section 420/468, P.P.C.
6. I have considered the arguments advanced by both sides. The point involved in the case is whether the agreement in question is a false and forged document and whether an offence of cheating is constituted on the basis of facts given in the complaint.
7. To appreciate the point it will be useful to reproduce the definition of cheating as laid down in case under section 415, P.P.C.: Section 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 damage or harm to that person in body, mind, reputation or property, is said to cheat."
'The essential ingredients or elements to constitute an offence of cheating is the 'property'. The ibid section has two parts. The first part is that a person may be induced to deliver any property to any person or to consent that any person shall retain any property. The second part of the section covers the class of acts of doing or omitting to do anything which the deceived would not do or omit to do if he were not so deceived. In the case covered by first part of the section, the delivery of property with fraudulent and dishonest inducement is the essential ingredient to constitute an offence whereas in the second class of cases, the inducement must be intentional. The offence of cheating is not committed if no deception was practised and sustained pecuniary loss in consequence thereof. For the purpose of cheating dishonest intention at the time of performing an act or promise is to be inferred and not from subsequent non-fulfilment of the promise. The question in the present case is whether the respondent was actually cheated and in what manner deception was practised on him or it was a breach of contract between the petitioner and his wife.
Admittedly agreement in question is not to the effect to induce the respondent or Mst. Farah to deliver any property to the petitioner rather petitioner No,1 promised to house her wife in a house having an area of four Kanals. Undoubtedly the case for the purpose of section 420, P.P.C. Does not fall under first part of section 415, P.P.C.
' The next point is that of the deception. The agreement in question was for the benefit of daughter of respondent in the nature of providing a facility of good living and was sort of a simple promise of husband with wife, the violation of which does not call the consequences of the nature of breach of marriage contract itself. The marriage contract between the parties did not contain the condition of performance of contract of matrimonial obligation subject to the performance of the condition incorporated in the agreement in question. The marriage contract was independent to the agreement for providing four Kanals of house, therefore, even in the absence of this agreement, the marriage had to take place. Therefore, the case is not covered even by the second part of section 415, P.P.C. To constitute an offence under section 420, P.P.C. A breach of contract, if any, does not constitute a criminal offence under section 420, P.P.C.
8. The contention that respondent agreed to give the hand of his daughter on the conditions incorporated in the agreement carries no weight and substance as the spouses lived together from 1984 to 1988 and a son was also born out of the wedlock. During this period the respondent or his daughter did not desire to fulfil the agreement and it appears that they with mutual understanding and conduct treated the agreement no more a document to be acted upon. It is only in 1988 when differences arose between the parties and the respondent first on civil side and then on criminal side put the agreement in motion. Anyhow, the facts and circumstances do not constitute an act of intentional inducement to the respondent or his daughter for her marriage with the petitioner through the agreement in question. The parties to the agreement and contract are petitioner No,1 and his wife whereas the complaint has been filed by the father of Mst. Farah wife of the petitioner and the respondent was not induced to deliver any property to make out a case under section 420, P.P.C.
9. The Nikahnama was prepared in the presence of witnesses which bears the signatures of all the concerned parties. The execution of agreement and the Nikahnama is admitted to be genuine on the basis of which Mst. Farah filed a suit for the recovery of dower at Multan. To prepare or make a false document is a forgery bearing essential ingredients of:-- "Preparing or making a document with intent to cause damage or injury to public or any person; to support any claim or title and to cause any person to part with any property; to enter into any express or implied contract and to commit a fraud."
' The agreement in question does not carry essential ingredients of forgery as it was executed and signed as a genuine document. All parties concerned admitted the document and also placed reliance on it, therefore, the agreement in question is not covered by the definition of a false document to attract the provisions of section 468, P.P.C.
10. The whole controversy in the case is with regard to not fulfilling the ' terms of the agreement i,e. The transfer of the land by petitioner No,1 in the name of his wife. The complainant has not alleged that the agreement in question and the Nikahnama are false documents. It is not the case of complainant that the document in question was dishonestly or fraudulently executed or prepared or altered the same after its execution or caused to sign the same in a deceitful manner. To attract the provisions of section 468, P.P.C. There must be forgery with intention of cheating and.As earlier discussed there being no evidence of forgery, section 468, P.P.C. Is not attracted in the present case. Nikahnama and the agreement in question were made subject-matter of the suit filed by Mst. Farah before the Family Judge, Multan and were used for recovery of the dower amount etc. There is no allegations of forgery'against the petitioners and of using the forged documents to be genuine to attract the provisions of section 471, P.P.C.
11. The learned counsel for the respondent contended that the petitioners can move for the relief they are seeking through this petition by moving an application under section 249-A, Cr.P.C. Before the learned trial Court. It is not denied that the earlier application moved under ibid section in August, 1989 is still pending for disposal before the learned trial Magistrate. This being the position there shall be no useful purpose to direct the petitioners to move the trial Court. The allegations of extending threats etc. Are general in nature with no specific instance.
' For the foregoing reasons, the proceedings in the complaint before the trial Court being abuse of process of law and Court are hereby quashed and in consequence thereof this petition is accepted.