The applicants have applied to this Court under section 561-A, ' Cr. P. C. For quashing the proceeding pending against them in the Court of the IV Additional City Magistrate which was initiated upon a complaint filed by opponent No. 1 an 30th April 1969. The learned Additional City Magistrate registered the case under section 420, P. P. C. And issued bailable warrants against them on the same day.
2. The facts which formed the background of the complaint are that an agreement was executed between applicant No. I representing the contractor `Inayat A. Khan and Brothers' and one Abdur Rahman, the father of opponent No. 1 for constructing his house on plot No. 84 in Rifah-e-am Society, Karachi some time during March 1968. Abdur Rahman gave an advance payment by cheque of R's. 10,000 to applicant No. 1 on 26th March 1968. It appears that there arose a dispute between them with regard to the progress of the construction, upon which applicant No. 1 served a notice through his Advocate on Abdur Rehman on 4th July 1968. This was replied to by Abdur Rehman through his Advocate on 11th February 1969. The allegations in the reply were controverted by the Advocate on behalf of applicant No. I by his letter dated 20th February 1969. A report was also lodged against the applicants at Police Station Malir, but it appears that no action was taken, whereupon the first complaint was filed in that very Court on 16th April 1969. Cognizance was taken by the learned Additional City Magistrate and bailable warrants were ordered to issue against the applicants. This complaint was dismissed for non-prosecution on 24th April 1969 and the applicants were discharged under section 259, Cr. P. C.
3. The second complaint which is the subject-matter of this application was filed thereafter on 30th April 1969. The learned Additional City Magistrate without examining the complainant under section 200, Cr. P. C. Re-registered the case afresh as according to him "the case was registered on the same ground and same facts on 24th April 1969". Though cognizance was taken as early as 30th April 1969, but I am informed by the counsel for the parties that no progress has been made in the case. The present application for quashing the proceeding has been filed on the ground that no case appears to have been made out under section 420, P. P. C. Against the applicants and that the continuation of the proceedings amount to an abuse of the process of the Court.
4. The learned counsel for the applicants has drawn my attention to paragraphs 4, 6 - and 7 of the complaint. It is an admitted position that the agreement was executed between applicant No. 1 and Abdur Rahman, the father of opponent No. 2 who had filed the complaint. Apphcant No. I has also admitted in his notice dated 4th July 1968 and the further reply dated 20th February 1969 that he had received the cheque for Rs. 10,000. Additionally he has alleged that he had commenced the construction work immediately after the execution of the agreement and that he had paid Rs. 1,600 to Abdul Rahman for the purchase of cement which was not supplied to him and that because of the non-availability of the material the work could not proceed further and that it was arbitrarily stopped at his instance; applicant No. 1 also alleged that he be permitted to start, continue and complete the work in accordance, with the agreement. In his reply dated 11th February 1969 Abdur Rahman admitted the following work to have been executed : "4. That both of you then started the work on my client's plot and executed the following work valued to the tune of Rs. 882 only within one week and thereafter you stopped the work on the pretext that the construction material available with you has. Been exhausted and you would resume the construction afer the material is arranged by you but you failed to carry out any further work as you never meant to do so:- Again in para. 7 of the complaint, opponent No. 1 has admitted that the applicants had done construction work on the plot after the site inspection by an architect, Abdul Latif Butt, its value was assessed at Rs. 882. The grievance of opponent No. 1 appears to be, as is apparent from para. 6 of the complaint, that the balance money had not been refunded.
5. It appears from the complaint that a case has been made out that the applicants were not contractors and has by misrepresentation induced opponent No. 2 to part with a cheque of Rs.
10,000 and to enter into an agreement for the construction of the house. Opponent No. 2 is the son of Abdur Rahman who had executed the contract. The cheque was also given by Abdur Rahman.
How opponent No. 2 figured as a person who had been induced to part with the money is not clear.
The admitted position is that he was neither a signatory of the agreement nor a person who had given the cheque. Besides, from the facts placed before me applicant No. 2 does not appear to be connected in this transaction with applicant No. 1. Even in the police report submitted to the learned Additional City Magistrate it is clearly mentioned that from the statement of opponent No. 2 it has not been established whether applicant No. 2 Is a contractor or a partner of applicant No. 1.
6. The notices exchanged between the parties and the allegations in the complaint clearly make out a case of a civil liability against the applicants. It is the admitted case of both the parties that the construction work had commenced and that it was stopped. The applicant No. 1 contends that it was arbitrarily stopped by Abdur Rahman while opponent No. 1 has stated that it was stopped on the pretext that the construction material available with the applicants had been consumed and that construction work would again be resumed after it was procured; however, no attempt was made to restart the work and that after waiting for long he had filed the complaint as the applicants had not refunded the balance amount paid to them. In the complaint it is admitted that the applicants had commenced the work. It cannot, therefore, be said that they had no intention from the beginning not to carry out the term of the contract and that the cheque was taken merely to cause wrongful loss to Abdur Rehman. The allegations made in the notices indicate a civil liability and at best it can be a case of breach of promise on the part of applicant No. 1 if he has failed a to complete the construction in terms of the contract. The remedy for this lies in a civil Court. The necessary ingredient of the offence, that is the intention not to execute the contract from the very beginning, is wanting in the case. I would, there--fore, quash the proceedings pending in the Court of the IV Additional City Magistrate against the applicants as the continuance of these proceedings in the circumstances amount to an abuse of the process of the Court. The application is accordingly allowed.