MUHAMMAD USMAN Versus STATE

1. This application under section 561‑A of the Cr. P. C. is for quashment of criminal case filed by the second respondent, under section 420, P. P. C. against the two applicants, and which, process has been issued by the Mukhtiarkar & F. C. M., Dadu on 9‑12‑1974.

2. The facts in the complaint briefly stated, are that the second respondent deals in food-grains etc. at Dadu, and required some registers etc. for maintaining accounts. The two appellants who according to him were previously known to him, approached him at Dadu and disclosed that ties were owners of Agaria Printing Press at Karachi, where they could get the required registers ere of good quality prepared at a comparatively cheaper rate. They thus induced the second respondent to pay an amount of Rs. 1,000 as an advance for purchasing quality paper etc. which amount was paid to them in the presence of witnesses Muhammad Ismail and Karam Ali, They had stated that they had received several orders of the same nature from other businessmen of Dadu Town. After an expiry of 15 days which was the stipulated period fixed for the supply of the printed registers, the second respondent wrote a letter to them, as the applicants had not kept their promise. There was however no response and the second respondent therefore went over to Karachi in the Agaria Printing Press where he learnt that the applicants had no concern with this Press which in fact belonged to some others. W thereafter tried to find out their address and ultimately contacted them and made a demand for the promised goods. In the alternative he demanded return of the amount of Rs. 1,000. Both the applicants avoided in the beginning, and ultimately refused to return the amount. The Magistrate examined Muhammad Ismail and Karam Ali, the two witnesses mentioned in the complaint in the preliminary enquiry and thereafter issued bailable warrants against the applicants as in his opinion an offence under section 420, P. P. C. appeared to have been committed.

3. The learned counsel for the applicants has contended that the applicants are the real brothers who had started the business of printing press in the name and style of Agaria Printing Press in the year 1963 in partnership with their two other brothers Muhammad Ismail and Muhammad Yousuf. Later on, there was a dispute of the brothers with one Malik Abdul Waheed, who claimed to have obtained possession of the Press on 21‑9‑1974 through execution proceedings to Suit No. 17/1974. But according to him the two brothers of the present applicants filed some 145, Cr. P. C. proceedings in collusion with the applicants and got the Press premises attached. He had filed quashment proceedings against the said 145, Cr. P. C. proceedings which are pending.

4. Mr. Manzoor Hussain, the learned counsel for the applicants has placed on record the certified copy of the above said order of attachment passed by the S. D. M. on 22‑10‑1974, the operative part of which is:‑

5. "I also authorise the S. H. O. Risala P. S. to attach and seal the said Agaria Press by taking and keeping possession thereof and to hold the same under attachment till the order of the competent Court determining the rights of the parties or the claims of possession have been obtained."

6. According to this, Abdul Waheed and the four brothers had filed a collusive suit with regard to the same Press, which is Suit No. 711/1975. Mr. Manzoor Hussain has also produced the certified copy of the order of the Vth Senior Civil Judge dated 7‑5‑1975, in this Court, in which it is stated "Admittedly the disputed premises is lying sealed and the same is at present in Court's custody till its release to either side by the S. D. M. or by the Hon'ble High Court under the said quashment proceedings".

7. The learned counsel has thus been able to establish the fact that from October 1974, till 2‑5‑1975 the Press was under attachment and therefore sealed. The allegation in the complaint made by the second respondent that he came to Karachi and visited the Press is therefore proved to be false. One more fact which is established by these two documents, is that there is a dispute pending in civil and criminal Courts at Karachi, relating to this Press and in which Abdul Waheed is opposed to the four brothers including the two applicants. According to the learned counsel, the present proceedings at Dadu were instituted only with a view to harrass the applicants, and to compel them to come to terms. He referred to para. 16 of his application which is as follow:‑

8. "That on this very date it is also curious to know that the other two accused who are the second party in 14.5, Cr. P. C. proceedings in the Court of S. D. M. City, Karachi, are also made accused by another complainant Muhammad Saleh in this very Court under sections 406, and 420, P. P. C., which incident is also alleged to have occurred on the same date at Dadu."

9. That case which was against the other two brothers has however been quashed already earlier. The contention of the learned counsel is that the present case is also the result of the same plan by which the attempt is made to coerce the applicants. The inference that this case is on account of the alleged motive and therefore mala fide, is not a necessary inference in the circumstances that are established.

10. What has got to be considered for the purpose of quashment of these proceedings is whether the complaint itself upon facts stated or even admitted could be construed to disclose no such offence for which process has been was sealed and closed at the relevant time which according to the complaint should be after about a month of the filing of the complaint i.e. somewhere in the month of January 1975. Besides this, no witnesses have been cited to show what transpired between the applicants and the second respondent at Karachi, as the allegation in the complaint itself is that the applicants had merely refused to return the amount. These circumstances do not go to establish an offence of cheating, for even if the amount was taken as alleged, a mere refusal to pay back the amount by the applicants would not constitute a cheating. The second respondent had a remedy for effecting the recovery of the same by filing a civil suit.

11. The second respondent has remained absent and Mr. Habibur Rashid, the learned counsel appearing for the State has very fairly supported the plea of the applicants that the complaint does not disclose an offence of cheating and in the background of the circumstances stated above, the possibility of the mala fides of the second respondent cannot be ruled out.

12. In this view of the matter, the processes issued by the Mukhtairkar and F. C. M., Dadu and the proceedings pending against the applicants are quashed.

13. Orders accordingly.

14. Proceedings quashed.