1. By this criminal miscellaneous application the applicants/accused Bashir Daud, Muhammad Yaqoob and Amir Raza have sought quashment of proceedings of Criminal Case No,76 of 1998 (Tanvir Ahmed v. Bashir Daud and others) pending before the learned Judicial magistrate, Nawabshah.
2. The brief facts of the prosecution case as disclosed by the complainant Tanvir Ahmed in his direct complaint filed before the trial Court are reproduced hereinunder:-- "That in the end of year 1996 when l checked my record, it transpired that 26 B.Rs, which were deposited by me in Allied Bank Limited, Masjid Road Branch, Nawabshah in the account of applicants Firm amounting to Rs,7,35,500 were credited in the account of Messrs Laraib ' Electronics by all the three accused with their common object. So I alongwith witnesses Mehboob Ali and Amin Jatoi went and complained to accused Nos.1 and 2, who admitted and said that it happened due to computer mistake and it will be corrected very soon but to no affect, hence notice, dated 26-2- 1998 was served upon the accused, who did not reply. On 15-3-1998, when all the accused persons came to Nawabshah and were available in Royal Hotel, I, alongwith Mehboob Ali and Amin Jatoi went and met with them and asked about the correction of my account, upon which they replied that by sending notice to them, they have been insulted and they became rash and attacked upon me by picking glass and Guldan from table and also gave threats of murder; but the witnesses intervened and saved my life. The accused persons also threatened that if I will come to Karachi, they will make my mind right. I went to police to lodge report but no effect and on 17-3-1998 I also made application to S.P. With no result. The accused persons with their common criminal object to usurp my Rs,7,35,500 by cheating and breach of trust, have given me threats of murder. Hence this complaint."
3. The learned Joint Civil Judge and F.C.M., Nawabshah after recording statement of complainant under section 200, Cr.P.C. On 19-3-1998, and statements of P.Ws. Under section 202, Cr.P.C. On 25-3- 1998, dismissed the direct complaint on 15-5-1998 under section 203, Cr. P. C .
4. The respondent No,1 (complainant) being aggrieved by the order stated hereinabove filed Cr.R.A.
5. No,10 of 1998 before the learned Sessions Court, Nawabshah. The learned III Additional Sessions Judge, Nawabshah set aside the order, dated 15-5-1998 and ordered that the complaint be brought on regular file and necessary process against all the accused be issued by order, dated 2- 7-1998.
6. It is further stated that on the statement, dated 20-7-1998 made by the Advocate for the respondent No,1 (complainant), the learned Judicial Magistrate II, Nawabshah brought the complaint on regular file by order, dated 22-7-1998 and issued B.Ws. In the sum of Rs,25,000 each against all the applicants/accused.
7. On 1-9-1998 an application under section 249-A, Cr.P.C. Was moved on behalf of the applicants/accused before the trial Court, and on 1-10-1998 after hearing the arguments, order was reserved and till today no order is passed thereon by the trial Court. On 9-12-1998 the learned Magistrate framed charge against the applicants/accused under sections 420, 406, 506(11), P.P.C.
8. Read with section 34, P.P.C. To which the applicants/ accused did not plead guilty.
9. It is further stated that on 22-4-1999 the respondent No,1 (complainant) moved an application under sections 225, 227, Cr.P.C. Before the trial Court for allowing alterations/amendments in the charge already framed against the applicants/accused as under:--
(i) deletion of words termination of dealership.
(ii) mentioning the date and year of the commission of the offences under sections 406, 420, P.P.C.
10. The trial Court by order, dated 13-5-1999 partly allowed the application to the extent of deletion of words "termination of dealership". Against this order the respondent No,1 (complainant) filed Criminal Bail Application No,14 of 1999 before the learned Sessions judge, Nawabshah and the same was allowed by order, dated 28-8-1999, whereby the amendment in the charge to the extent of date/period of the commission of offence was allowed.
11. I have heard Mr. Kamaluddin learned Advocate for the applicants, Mr. Abdul Hadi Khoso learned Advocate for respondent No,1 (complainant) and Mr. Rasheed Ahmed Qureshi learned Assistant Advocate-General for the State. The learned State Counsel conceded to the arguments of learned counsel for the applicants/accused and stated that it is a fit case for quashment of proceedings. I have also perused the material placed on record.
12. The perusal of the record shows that the respondent No,1 (complainant) also filed F.C. Suit No,10 of 1999 (Tanvir Ahmed v. Messrs United Refrigeration Industries Pvt. Ltd.) in the Court of 1st Senior Civil Judge, Nawabshah on 11-2-1999 for recovery of Rs,7,35,500 and markup/interest, which is pending adjudication. The applicants/accused firm has filed summary Suit No,206 of 1999 (Messrs United Refrigeration Industries Ltd. v. Tanvir Ahmed) for recovery of Rs,50,8,750 tinder Order XXXVII, Civil Procedure Code. This suit is also pending adjudication.
13. It is averred in the suit filed by the applicants/accused firm that Messrs United Refrigeration Industries (Pvt.) Ltd. Having its Head Office at Karachi, has its factory and warehouse in S.I.T.E. Area Hyderabad and it's sale office in a bungalow at Latifabad, Hyderabad. The firm deals in Refrigerators, Deep Freezers, Air-conditioners and washing Machines etc. And the opponent No,1 has been its dealer at Nawabshah carrying on his business under the name and style "Tokyo, Indus and Electronics". On 26-21996 the opponent No,1 purchased lightly dented/damaged Washing Machines for a total sum of Rs,3,70,000 from the. Sale Office of applicants firm, in his personal name and took the delivery of the same from its warehouse, against 8 (eight) post-dated cheques for 1st to 6th June, 1997 drawn on United Bank Limited, Moni Bazar Branch, Nawabshah, which were dishonoured when presented for their encashment for want of sufficient amount in the account of the above named opponent No, 1 . The various consignments received by the opponent No,1 in the name of "Tokyo Electronics" and "Laraib Electronics" an amount of Rs,1,56,186 was also outstanding against him,. Which he failed to pay. Apart from that the sum of Rs,3,70,000 being the total amount of 8 (eight) cheques which were dishonoured. The opponent No,1 instead of clearing the abovesaid dues, started claiming Rs,7,35,500 from the applicants firm and in that context there were exchange of notices between the parties.
14. The plain reading of the complaint, statement of complainant and statements of the P.Ws.
15. Recorded during preliminary enquiry clearly shows that the grievance of opponent No,1 (complainant) was that statement of business account in respect of Rs,7,35,500 was not shown in the computer and settlement whereof was not made.
16. Admittedly the opponent No,1 was dealer of applicants and there was business dealing beteen the parties. There are claims and counterclaims. In that context parties are locked in litigation by way of civil suits, which are pending adjudication before the Courts of civil jurisdiction.
17. For constituting an offence of cheating and breach of trust the fraudulent and dishonest mens rea/intention and inducement at the time of performing the act are essential ingredients. In this respect the onus lies on the prosecution to prima facie establish the aforesaid ingredients for taking cognizance in the matter. Mere denial of transaction and refusal to pay the money does not necessarily show criminal intention from very beginning. The accused cannot be convicted merely on presumptions.
18. In the present case privity of contract was existing between the parties. The date, time and place of the commission of the offence under sections 420, 406, P.P.C. Was neither disclosed in the complaint nor in the statement under section 200, Cr.P.C. The complaint is belated by two years and no plausible explanation with regard to this inordinate delay has been given by the prosecution. The fraudulent and dishonest intention/mens rea and inducement by way of misrepresentation is lacking in the case. The matter on the face, of it, is purely of civil nature. The civil liability cannot be enforced by circumventing the criminal prosecution. The offence under section 506, P.P.C. Is a distinct offence and if it is not committed in the same transaction it cannot be tried with offence of cheating.
19. In this context I am fortified by the decisions in cases of (i) Ikramuddin and 4 others v. The State and another 1984 PCr.LJ 2736, Ghulam Ali v. Javid and another 1989 PCr.LJ 507, Abdul Ghafoor and others v. Raeesuddin and another 1991 M LD 376, Mian Bakhsh Ellahi and others v. The State and others 1993 PCr.LJ 856, Abdul Majid v. Nawab Din 1973 SCM R 373, R.C.P. Guignard v. The State and another PLD 1963 (W.P.) Kar. 868 and Muhammad Aslam v. The State and others 1993 FCr.LJ 749.
20. The upshot of the above discussion is that the application merits consideration. Consequently, the proceedings of case No,76 of 1998 (Tanvir Ahmed v. Bashir Dawood and others) under sections 420, 406, 506-11, P.P.C. Read with section 34, P.P.C. Pending before the learned IInd Judicial Magistrate, Nawabshah are hereby quashed, as the same are abuse of the process of Court. The applicants/accused are on bail their bail bonds stands discharged.