' This is an application under section 561-A, Cr. P. C. Praying for the quashment of the proceedings which have been instituted against the two applicants in the Court of R. M., Kandiaro, on the basis of a complaint filed by respondent No, 1 on the 25th of November, 1974. On receipt of the above complaint, the learned Magistrate recorded the statements of respondent No, 1 as also two of his witnesses, namely, Ghulam Husain and Umar, and thereafter, ordered process to issue against the applicants under section 420, P. P. C. It is against the issue of this process and the consequent proceedings that the applicants have felt aggrieved and approached this Court-for redress.
2. I have heard Mr. Muhammad Hayat Junejo, the learned counsel for the applicants, and Mr. Manzoor Hussain who appeared for the Advocate-General, Sind. Respondent No, 1, though served, has chosen to remain absent.
3. The contention of Mr. Muhammad Hayat Junejo is that the complaint discloses only a civil dispute and not a criminal liability and hence the proceedings against the applicants are an abuse of the process of the Court and consequently ought to be quashed. In support of his contentions the learned counsel relied upon the decision in Abdul Khalik v. Abdul Ghani (1), which was confirmed by their Lordships of the Supreme Court in the case reported in 1971 SCMR 106 and the decisions in Jamot Ghulam Hussain v. State (2), Hyder Ali v. Khuda Dino (3), and Saleh v. State (4).
In order to appreciate the contentions of the learned counsel it would be appropriate to set down in extenso the complaint filed by respondent No,
1. It reads as follows: ' Under Section 406-420, P. P. C.
' The complainant above-named begs to file his complaint as under :- "That I, the complainant, deal in rapeseed business for a pretty long time. About a year or so back, both the above-mentioned accused came to me at Hala and gave the assurance that they would purchase rapeseed. They are very well known to me, as they pay visits at Bhiria Road, where their business was running considerably. Then I settled 200 maunds of rapeseed with them. Before the witnesses, namely Ghulam Hussain Kirio and Umar Gurmain, they weighed the goods and departed. I told them that I would come and settle the rate within a month. A month later, I contracted them and asked them to settle the rate, but they evaded. Ultimately, I complained of this to Syed Murad Ali Shah and other respectable persons, but the accused paid no heed. The accused by giving me assurance, misappropriated my goods and thus committed the breach of trust.
' The Hon'ble Court is requested to proceed against them."
4. A perusal of the complaint shows that it prima facie was a commercial transaction, wherein the applicants are said to have purchased 200 maunds of rapeseed from Respondent No, 1 at a rate which was to be subsequently settled. There is no allegation in the complaint that the rapeseed were entrusted to the applicants or that the acquisition or transfer of the rapeseed to the applicants was by means of deception or dishonest misrepresentation. The essential ingredient of an offence of cheating is the dishonest or fraudulent inducement of a person, by deception or false representation, to deliver or transfer property to another person. In the instant case, neither in the complaint nor in the statement of the complainant or either of his witnesses there is any allegation of a fraudulent or dishonest deception on the part of the applicants.
5. In Abdul Khalik's case, the complainant had filed a complaint against the petitioner alleging that 4 years previously, the petitioner had borrowed a sum of Rs, 1,250 from the complainant which he had failed to pay. There was also an allegation in the complaint that the intention of the {{FOOT NOTE}}
(1) PLD 1970 Kar. 446 (2) 1971 P Cr. L J 352
(3) 1976 P Cr. L J 195 (4) 1976 P Cr. L J 225 {{FOOT NOTE}} petitioner from the very beginning was not to pay the amount. After an exhaustive review of a number of authorities on the question of enforcing a civil liability through the medium of the criminal Courts, the contention that the intention of the petitioner from the very beginning was not to pay the amount was repelled and it was held that as the object of the complaint was only to recover his dues, the criminal case obviously appeared to have been filed to coerce the petitioner by dragging him to a criminal Court. The proceedings against the petitioner were accordingly quashed. This decision was challenged in appeal to the Supreme Court, but in the case reported in 1971 SCMR 106, their Lordships of the Supreme Court upheld the decision of the High Court and refused to grant Special Leave to Appeal holding that the circumstances of the case clearly indicated that the complaint filed by the complainant is not a bona fide one and that the dispute was of a civil nature.
6. In Jamot Ghulam Husain's case, a complaint was filed under sections 406, 420, P. P. C. Against the petitioners, wherein it was alleged that the petitioners, who had contracted to supply fish to the complainant and for this purpose had received money in advance, subsequently refused either to supply the fish or even to refund the money. It was held that the facts constituted a simple case of breach of contract and refund of the money and accordingly the criminal proceedings were misconceived and were quashed.
7. In Hyder case, the complainant alleged that he had entrusted a sum of Rs, 30,000 to the petitioner through a Promissory Note on Demand but subsequently the petitioner flatly refused to pay the amount and claimed that he had invested the same and was, therefore, unable to pay it. It was held that the facts disclosed a dispute of a civil nature for which the only appropriate course was a civil suit and that the complainant, in order to circumvent the civil remedy, had wrongly resorted to criminal proceedings to coerce the accused to pay the amount under pressure. It was observed that these tactics amount to abuse of the process of the Court and hence the proceedings were quashed.
8. It is not necessary to discuss Saleh's case, as that was a case of alleged criminal breach of trust, whereas the process in the instant case had been issued under section 420, P. P. C. I would, however, respectfully refer to the observations of Sajjad Ahmed Jan, J., in Muhammad Rashid v.
Niazan Bibi "The learned Single Judge, while accepting the petition of the respondents under section 561-A, Cr.
P. C., has quashed the proceedings against them on the ground that even accepting the allegation of the complainant to be true, no offence was disclosed against them either under section 419 or section 468, as no element of dishonesty was made out, which was a necessary ingredient of both sections 419 and 468. It is quite clear that the sale of the bungalow was effected by the petitioner in favour of respondent No, 1, Mst. Niazan Bibi, who had paid the full price for the same short of Rs, 4,000. If the Stamp-paper had been purchased by the respondents in the name of the petitioner for purposes of executing the sale-deed, it was obviously done with the intention of getting the deal finalised but the sale-deed could not have been registered unless it was assented to and approved {{FOOT NOTE}}
(1) 1972 SCM R 387 {{FOOT NOTE}} by the complainant-vendor by putting his signatures on it and by getting the deed registered. We consider that the High Court was quite right in quashing the proceedings, which were instituted against the respondents, as on the allegations made in the complaint, no offence whatsoever was disclosed against the respondents. This petition is dismissed."
9. Mr. Manzoor Hussain, the learned counsel for respondent No, 2, did not oppose the application and conceded that the complainant in the instant case made out only a civil dispute for which the appropriate remedy was filing of civil proceedings. I am satisfied, on consideration of the complaint and the statements of the witnesses recorded by the learned R. M., Kandiaro, that this is a civil dispute, where a civil liability is sought to be enforced by the coercive process of the criminal Court, which clearly is an abuse of the process of the Court. I would accordingly allow th application and quash the proceedings which are pending against the applicants in the Court of the learned R. M., Kandiaro.