' This order will dispose of I.C.A No,28 of 2000.
2. The facts, in brief, are that an F.I.R. No,230 of 1999, dated 23-11-1999, had been registered under section 409/420, P.P.C. Read with section 5(2) of 1947, P.C.A., at Police Station Anti-Corruption Establishment, Multan Region, against respondent No,1/Amjad Hussain Sandhal, Tehsildar, Board of Revenue, Punjab, Lahore, on the complaint of Muhammad Siddique, appellant (herein) alleging there in the F.I.R. That respondent No,1 had obtained a loan of Rs,45,000 from him in the year 1990 while he was proceeding to U.S.A. And when he returned from abroad, he refused to pay back the same. He further, alleged that respondent No,1 was a Naib-Tehsildar. He left for America without leave, producing a forged medical certificate showing the justification of his absence. The complainant prayed that proceedings be initiated against respondent No,1 and amount be returned to him.
3. A Writ Petition No,11170 of 1999 for the quashment of the F.I.R. Filed by respondent No,1 in this Court and the learned single Judge in Chamber vide judgment, dated 10-2-2000 accepted the same and quashed the F.I.R.
4. Learned counsel for the appellant contended that the learned Judge in Chamber has not adverted to report and parawise comments submitted by the Anti-Corruption Authorities, in which, the said authorities have stated that the case in question is being investigated with regard to the allegation of obtaining Rs,45,000 by the respondent No,1 and the learned Judge has erred in law in holding that the offence under section 409/420, P.P.C. Is not made out against the accused/writ petitioner. He further argued that respondent No,1 had prepared a forged medical report on behalf of Dr. Bashiruddin Hashmi, and, hence, an offence for preparing the document is made out against him. He further submitted that mere incorporation of the offence in column No,3 of the F.I.R. Does not constitute any offence. The offence is constituted against respondent No,1 from the contents of the F.I.R., referred to above and that the respondent No,1 had left the country without leave from competent authorities and thereafter, to justify his absence has prepared the forged documents and gained benefit out of this document. He further contended that respondent No,1 had adjusted the amount of Rs,45,000 for sanctioning of a mutation in favour of the complainant/appellant which could not be sanctioned legally.
5. We have considered the arguments addressed by the learned counsel for the appellant and gone through the record. It is admitted position that respondent No,1 being the friend of the appellant had obtained an amount of Rs,45,000 as loan which he promised to return him later on after coming back from America. Meaning thereby, that this amount was not obtained by respondent No,1 from the appellant as bribe. Section 409, P.P.C. Enshrines that "whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". The criminal breach of trust is "whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such mode is to be discharged".
6. From the plain reading of the above referred provision of law, it reveals that respondent No,1 had not been entrusted with this amount as public servant nor he being the same has dishonestly misappropriated or used or converted to his use this amount. The amount mentioned above was taken by respondent No,1 as loan at the time there was inter se friendship. The ingredients of offence of criminal breach of trust were not made out and case is not covered under section 409, P.P.C.
7. Similarly, the offence under section 420, P.P.C. For the purpose of cheating on dishonest inducement on the part of a person with intent to deprive the person so deceived to deliver any property is also not made out. As from the contents of the F.I.R., respondent No,1 borrowed the said amount with promise to repay the same to him and if the respondent had refused to pay back the said amount, then, he has committed no offence. If the appellant is aggrieved by this act of respondent No,1, he could resort to the remedy by filing of a civil suit against respondent No, 1 .
8. As to section 5 of the Prevention of Corruption Act, 1947, is concerned, respondent No,1 being a public servant has not committed the offence of criminal misconduct. He has not accepted or obtained or agreed to accept or attempted to obtain for himself from the appellant, any illegal gratification neither he has dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant or allowed any person to do so.
9. As to the contention of the learned counsel for the appellant that later on the respondent No,1 has promised to sanction a mutation in favour of the appellant, suffice it to observe, that no such evidence has been placed on record nor he has been able to show which of the mutation was sanctioned by respondent No,1 in lieu of the amount obtained by him as loan.
10. From the perusal of the record it reveals that an inquiry was initiated against respondent No,1 on the allegation of wilful absence from duty and submission of fake medical certificate regarding his illness, was conducted by the Inquiry Officer/M.I.C., Multan and he came to the conclusion that the allegation against respondent No,1 do not stand proved. The departmental action against respondent No,1 was dropped, thus, after the scanning of the record, it transpired that the allegations of the appellant against respondent , No,1 for making a false or forged document are misconceived.
11. Learned Judge in Chamber after applying his judicial mind on all D the four corners of the case has accepted the writ petition and quashed the F.I.R. Learned counsel for the appellant has not been able to point out any illegality or jurisdictional defect in the impugned judgment, therefore, in view of the above discussion; we have no option but to dismiss this IntraCourt Appeal in limine.