ABA UMAR SHAIKHA vs ABDUL REHMAN SHAH AND Another

This is an application under section 561-A, Cr. P. C. For quashment of the proceedings pending in the Court of Civil Judge and First Class Magis--trate Tando Bago, initiated against the applicant on the private complaint of the complainant, respondent No. 1.

2. The private complaint under section 420/406, P.P.C. Had been lodg--ed by the respondent No. 1.

Abdul Rehman's Shah, in the Court of Civil Judge and First Class Magistrate, Tando Bago on 18June, 1978. In the complaint, the respondent No. 1 had stated that he was a dealer of cattle, and he also used to sell the cattle in lots. On the occasion of Eid--ul-Azha the applicant used to purchase cattle from the complainant by making cash payment on the spot and sometimes if he could not make payment on the spot, the applicant used to remit the amount to the complainant on reaching his village. The complainant further stated some times the complainant would go and collect the money himself from the applicant. It was mentioned by the respondent No. 1 in his complaint that during the previous year, on the occasion of Eid-ul-Azha, the applicant purchased cattle worth Rs. 2,000 out of which he paid Rs. 500 on the spot to the respondent and promised to remit the balance of Rs. 1,500 later. The complaint then states that the respondent believed the applicant, as money dealings and transactions existed between the parties since a long time, and handed over the cattle to the applicant by giving him credit for Rs. 1,500. According to the complaint the appli--cant did not remit the money and in the circumstances, the respondent reminded the applicant by writing several times to the applicant making demands but the balance amount was not paid. After some time the respondent accompanied by another person, went to the applicant who pleaded that he was financially handicapped and requested for time. The respondent again approached the applicant but the balance amount was not paid to him. Theth grievance of the respondent In his private complaint was that in the circumstances the applicant defrauded the complainant of Rs. 1,500. He made a report at the police station, but the police refused to register a case.

3. The contention of Mr. Rashid Muneer, learned counsel for the applicant, is that even if the allegations that have been made in the complaint are taken to be correct, no case for commission of any offence can be made out against the applicant. Although he disputed the allegations made in the complaint, according to him this was purely a matter of civil liability, for which the complainant should have approached a civil Court for recovery of the amount in question. Mr. Rashid Muneer has relied upon two reported judgment of this Court reported in Muhammad Usman v. State (1976 P Cr. L J 153and also a judgment of the Lahore High Court reported in Muhammad Sadiq v. Muhammad, Ali (1976 P Cr. L J 699

4. The contention of the learned counsel for the applicant is correct. The facts, as alleged in the complaint, do not make out the commission o any offence either under section 420 or section 406, P.P.C. The respondent himself states in his complaint that he gave credit of Rs. 1,500 to the applicant but the amount has not been paid in spite of requests and demands. It is also stated in the complaint that previously also the parties had dealings with each other and on previous occasions also cattle had been sold by the respondent to the applicant against cash payment or on credit. In the present case, on the first occasion when the respondent bad gone to make demand of Rs. 1,500 the applicant sought time on account of financial difficulties. It is apparent that this is essentially a civil matter. The rulings cited by the learned counsel support his con-- tention that no case for the commission of any offence against the applicant has been made out in the complaint.

The case of Muhammad Sadiq and others v. Muhammad Ali and another decided by a learned Single Judge of the Lahore High Court, on which reliance has been placed by Mr. Rashid Muneer, is a case on all fours with the present case. The Lahore case also deals with purchase of buffaloes by the applicants from the complainant in that case. Paragraph 5 of the same judgment at pages 700-701 may be reproduced here:-- "5. I now take up the contention that allegation in the complaint only make out a civil liability."

It is admitted by Muhammad Ali, complainant (respondent) that the petitioners had business relations with him and used to come to him for purchasing buffaloes. In fact Muhammad Ali admitted before me that even before the incident the petitioners had come to him a number of times and taken away buffaloes on credit, in the course of business. As such, I am inclined to agree with the learned counsel for the petitioners that once it is admitted by Muhammad Ali complainant/respondent that the buffalo in question was purchased from him by the petitioners (who had business relations with him), on payment of price or on credit, the only liability against them would be to pay the price thereof. This is merely a civil liability in the circumstances of this case it cannot be said that the non-payment of the price of the buffalo constitutes a criminal offence.

6. In the circumstances, the proceedings before the Civil Judge and First Class Magistrate, Tando Bago initiated on the complaint dated.18June 1978 filed by the respondent No. 1 alleging commission of offences under section 420/406, P. P. C. Against the applicants are quashed.

7. The learned counsel for the applicant points out that by the order dated 6th December 1979 by which the above application was admitted for regular hearing the warrant of arrest issued against the appellant was suspended subject to providing one surety and P. R: in the sum of Rs. 5,000 to the satisfaction of the Nazir of this Court. As the main application under section 561-A has been allowed\and the proceedings quashed the surety is discharged and the P. R. Bond is directed to be cancelled.th