' Muhammad Saleem, Zafar Iqbal (petitioners) and Azhar Iqbal are accused of cheating Saleem Hassan complainant. The complaint is pending in the Court of A. C/S. D. M., Sahiwal. The petitioners have come up for quashment of the proceedings against them.
2. The complainant is a managing partner of United Tanneries, Sahiwal. He supplied come leather to the accused on several occasions. As a result of the business dealing, Rs, 50,000 were due to the complainant. Since the complainant could prove the liability of the accused from the entries in his account book to the tune of Rs, 40,284 only the accused, therefore, accepted the liability and issued three post-dated cheques on 13-2-1976. The first cheque was presented in May, 1976 but was dishonoured. Thereafter the accused were approached. They executed a receipt on 15.6-1976 wherein the liability pay was again accepted by them. Subsequently the remaining cheques were also dishonoured in June and July, 1976.
3. Learned counsel for the petitioners contended that the fact that postdated cheques were issued was an indication that the payee had no money in the Bank and as such if he was unable to deposit the amount with the Bank before the date on which the cheque was to be presented his failure to pay was no indication of guilty intention.
4. Learned counsel for the respondent contended that it would be perm lure so consider whether there was mens rea in the conduct of the petitioners. After entire evidence is recorded at trial only then the complainant would be in a position to prove the criminal intention of the petitioners. It was also contended that the petitioners should have first filed a revision petition before the Sessions Judge praying for setting aside the order of summoning them because that would have allowed the respondent an opportunity of filing a fresh complaint in case the petitioners had succeeded there.
5. I have considered the matter. The sole question for determination would be whether the complaint and the preliminary evidence produced before the Magistrate made out a criminal charge against the accused. The facts mentioned earlier show that the transaction between the parties was of a civil nature. The inability to pay up a debt did not prove mens rea. The documents relied upon by the complainant indicated that the accused accepted their liability and promised to pay up in future. For their failure to pay A up in time they could not be dragged in criminal litigation since it made out no offence. To take criminal proceedings in the hope that the debtor will pay the amount claimed rather than face a criminal charge, to use the criminal Courts for enforcing a civil claim is highly improper and is an abuse of the process of the Court.
6. For what has been said above, I accept the petition and quash the proceedings against the petitioners pending in the Court of Sub-Divisional Magistrate, Sahiwal.