SYED RASHID HUSSAIN Versus MUHAMMAD ISMAIL

These are 5 connected applications under section 561‑A, Cr. P. C. for quashment of proceedings started on direct complaints for offences under section 420/.109, P. P. C. The facts leading to these applications in brief' are as under :

The management of Ahmed Rehman Flout Mills Shershah, Karachi approached the various food‑grain merchants of Karachi for supply and delivery of wheat for their flour mills. They induced the foodgrain merchants to deliver various quantities of wheat and issued cheques drawn on Standard Bank Limited towards payment of the price of wheat. In all the five cases the cheques were returned dishonoured with the endorse ment "refer to drawer". Thus the delivery of wheat was taken fraudulent ly without any intention to make payment. At the time the cheques were drawn, the management had no balance in the bank and they knew that the cheques would never be cashed. All the 5 grain merchants accordingly filed 5 different complaints under section 420/10, P. P. C. against the Managing Director Ch. Nazir Ahmed, the Proprietors as well as the Manager Syed Rashid Ali. The late Mrs. Surriya Ahmed Pai City & A. D. M., Karachi after recording statement of the complainant on perusal of the dishonoured cheques and endorsements ordered issue of bailable warrants against the 7 accused in each case.

2. It has been argued by Mr. Imdad Ali Agha on behalf of the Chief Executive of the Flour Mills that all these matters are concerning cavil liability only and mere bouncing of a cheque does not necessarily show that there was an intention to cheat as held in Saeeudain Qureshi v. The State (P L D 1963 Kar. 54). In that case a post‑dated cheque given by accused is re‑payment of money was returned by the bank dishonoured. It was observed by Raymond, 3 as he then was that the mere fact that a cheque bounces is not sufficient for the purpose of establishing a charge of cheating. It must further be shown that he knew it that there would be insufficient money in his credit in the bank account on the date of encashment. A reference was made in this judgment to A I R 1938 Mad.

129. It seas held in that cast that "a post‑dated cheque in payment of goods already received, is a mere promise to pay on a future date and a broken promise is not a criminal offence though it way amount in certain business relations to discreditable behaviour'". 3 these observations, therefore, apply to a case of an issue of post‑dated cheque for the goods delivered in a single instance. The facts in the present cases are, however, somewhat different. In these cases cheques were issued about the same time for payment to all the five wheat merchants for the wheat delivered by them. There is nothing to show that the cheques were post‑dated. They were meant to be cashed at the time they were issued. They were, however dishonoured by the bank in each of the 5 cases and the endorsement was that the party drawing the cheque had no balance. In Pirzada Ghulam Muhammad v. M/s Chashlum Contractors (1973 P Cr. L J 1548) it was, however, observed:

"The main contention of the learned counsel for the petitioner is that the matter is essentially of civil nature, and, therefore, it should not be allowed to proceed in a criminal Court he has relied on R. S. Ratra v. Ganesh Das A I R 1940 Lah. 93, Sheo Saran Vaish v. Jitendra Nath Das A I R 1928 Oudh 292 and Ganpat Dattu Baskar v. Emperor A I R 1930 Bom. 179 to contend that neither the offence of cheating nor that of criminal breach of trust can be said to have none of these casts it was held that no matter what the circumstances of tile case may be whenever there is a question of (post‑dated) cheque involved, the Criminal Court must stay its bands In my view, the question of guilt or otherwise of the accused even in cases involving (post‑dated) cheque, can and must be decided on the facts and circumstances involved in individual cases. The question of intention has to be determined after the evidence is led before the Court. I therefore do not a fee with the learned counsel that because cheques are involved in case, therefore without giving an opportunity to the complainant to produce his evidence, the proceedings must be quashed."

3. Thus no hard and fast rule can be laid down in these matters and the question will always be one of fact whether at the time the cheques were issued the drawer had no intention to make the payment. There is an added factor in this case that in each of these 5 transactions wheat was purchased and a cheque was issued in payment which was later oat dishonoured. The fact that soon before or soon after the issue of such a cheque the same person had issued several other cheques which were also dishonoured in similar manner would be a relevant fact to show that such act formed part of a series of similar occurrences and in each of these occurrences the person complained against was concerned; that therefore, the non‑payment of the cheque was not accidental but intentional as provided under section 15 of the Evidence Act. Therefore, in all these cases where the facts stated snake out a case of cheating, is a question depending on evidence and it cannot be said that on the face of the complaints no criminal offence is made out. The mere fact that a case of civil liability is also made out, would not be sufficient for quashing A the criminal proceedings at this stage when no evidence has even been recorded. This is also the view of the learned counsel appearing for the State.

4. Mr. Iqbal Ahmed has then argued that at the most Ch. Nazir Ahmed the Executive of the dills and Syed Rashid Ali the Manager, would be responsible for these transactions and the other accused respondents who were mere directors could not be liable for the criminal offences. It is not possible however, on a perusal of these complaints to decide as to which of the accused would be liable and for what offence. It is function of the trial Court after recording of evidence to decide the case against each of the accused on merits. In proceedings under section 561‑A it would not be proper to discuss questions of evidence and express opinion with regard to the respective merits of the case against each of the several accused s.

5. The applications are accordingly dismissed.

Applications dismissed.