Syed MAZHAR ALIAppelicant vs ALI KHAN AND ANOTHERS

ORDER

1. ' The applicant abovenamed has filed the above petition for quashment of proceedings in the shape of Case No, 246 of 1980, pending against him, in the Court of City Magistrate Nawabshah, under section 420, P. P. C., on the facts and grounds mentioned in the above petition. The learned counsel for the applicant, in support of the above petition submitted as follows :-

(a) That from the contents of the complaint and the statement of the complainant and his witnesses, no criminal case whatsoever has been made out against the applicant, and at the most there is a civil dispute between the parties in respect of certain payment and consequently the cognizance taken by the learned trial Court, under section 420, P. P. C. Was unwarranted.

(b) That since the learned trial Court on the basis of the private complaint has taken cognizance no useful purpose will be served, if application under section 249-A, Cr. P. C. Is made before said Court, for quashment, specially in view of the facts of the present case, which clearly disclose a civil dispute between the parties. In support of this contention the learned counsel for the applicant has relied upon cases reported in 1982 P Cr. L J 1039 and Fazal Karim v. Muhammad Musaleen 1979 P Cr.

2. L J 921 and submitted that this is a fit case for quashment, in spite of the fact, that the applicant has not moved the learned trial Court under section 249-A, Cr. P. C.

3. ' The respondent No, land his Advocate have been called absent since morning and it is now 11. 35 p. m. And as such I have proceeded with the above matter on/merits as notice for today's hearing was sent to the learned counsel-for the respondent No, 1, as far back as 19th June, 1983.

4. ' The learned counsel appearing for the State submitted, that this is a fit case for quashment of the proceedings, as the dispute between the parties in respect of a cheque of Rs, 11,000 is a civil dispute and no criminal case has been made out either from the statement of complainant or from the statements of his witnesses, recorded in preliminary inquiry.

5. ' I have carefully considered the above submissions made by the learned counsel for the applicant and have gone through the private complaint, a copy of which is available on record, as well as statements of the complainant and his witnesses recorded by the learned trial Court. Mere reading of these statements and the complaint, in my opinion do not disclose any criminal offence committed by the applicant. It is very clear from the complainant's complaint and statement of the prosecution witnesses that this is a civil dispute, in respect of a dishonoured cheque, between the parties. The only point which requires consideration is whether the above petition is maintainable, as the applicant has not moved the learned trial Court under section 249-A, Cr. P. C., before coming to this Court. In this connection the learned counsel for the applicant has relied upon cases reported in 1982 P Cr. L J 1039, in which I have come to the conclusion, that in cases like this, where the cognizance is taken by the learned trial Court, after holding preliminary inquiry, moving of the application under section 249-A, Cr. P. C., at this initial stage would be futile exercise and the remedy available under section 561-A, Cr. P. C. In such a case would be available to the applicants.

6. The facts of the present case and one on which the learned counsel for the applicant has relied upon are more or less similar and in my opinion the decision of the Hon'ble Supreme Court reported in 1979 SCMR 96 would not be applicable to the above petition and, therefore, I hold that above petition is maintainable.

7. Keeping in view my above observation about the private complaint in question, both in respect of the complainant's statement and statement of the P. Ws. In my opinion the contents of this private complaint, before B the learned trial Court cannot result in conviction of the applicant and as such continuance of the said proceedings would amount to abuse of the process of the learned trial Court.

8. ' Therefore, I allow the above petition and quash the proceedings pending against the applicant, in the shape of Case No, 246 of 1980, under section 420, P. P. C., in the Court of learned City Magistrate, Nawabshah and discharge the bail bonds executed by the applicant.