GHULAM ALI vs JAVID and another

1. ' This is an application for abashment of proceedings pending against the applicant under sections 406, 420 and 506, P.P.C. Before the S.D.M. Civil Lines, Karachi (South).

2. ' The brief facts giving rise to the present application are that complainant/respondent No,1 is the owner of `Khalid Javed Woollen- Mills' S.I.T.E., Karachi and accused/applicant used to purchase Woollen Yarn from him. That the accused/applicant used to purchase the goods on cash but later on he used to purchase the same on credit from the complainant with the result that he was indebted heavily, such debit vouchers were signed by the applicant. That on 11-7-1984 the accused acknowledged the debit which was to the tune of Rs,12,29,413 and promised to pay the same in monthly installments of Rs,20,000 to Rs,30,000 but he failed to do so. That the accused issued cheques A.A. Rs,6,00,000 (Rupees six lacs. Only) which were dishonored. Therefore, the complainant filed a direct complaint before the S.D.M. Bin Qasim at Karachi. After holding preliminary enquiry the S.D.M. Was pleased to issue process against the applicant under section 420/406, P.P.C. On 16-11- 1985. However, the accused was discharged later on for want of evidence. The complainant again filed a fresh complaint against the applicant under sections 420/406 and 506, P.P.C. On 14-7-1986.

3. In this complaint, facts mentioned in the previous complaint were repeated. It was further alleged that on 10-7-1986 the complainant along with Shaikh Muhammad Nazeer, Abdul Hakeem and other persons went to the officer of the accused at Marina Hotel and demanded Rs,12,99,064. The accused became furious. He abused, insulted and threatened to kill the complainant and cut him into pieces in case the complainant demanded his amount and therefore, section 506-B, P.P.C.

4. Was also applied.

5. ' A suit was also filed by the complainant in this Court being Suit No,.92 of 1986 for recovery of Rs,6,00,000 (the amount of dishonoured cheque) in which an order was passed directing the accused/defendant to furnish surety. The accused also filed a suit against the complainant being Suit No, 257 of 1986 before this Court for recovery of Rs,11,00,000 and the same is still pending. It was also stated at the bar by the learned counsel appearing for the applicant that the applicant has filed another suit being Suit No, 9 of 1986 before the Senior Civil Judge No,XI, Karachi (South) for cancellation of cheques and the same is still pending.

6. ' It was contended by Mr. Habibur Rehman learned counsel appearing for the applicant that the dispute between the parties is of civil nature and respondent No,1 had filed the present case mala fide in order to harass the applicant. That the civil suits are pending between the parties for the amount in question and no criminal offence is made out from the complaint itself.

7. ' Mr. Farooq Naik, learned counsel appearing for the complainant has contended that the applicant was supplied woollen yarn on the assurance that he will pay the price later for which he had issued cheques subsequently but the same were dishonoured. That the offence under section 406, P.P.C.

8. Was made out against the applicant from facts mentioned in the complaint. He has further contended that the applicant had issued threats to the complainant of dire consequences, in case he demanded his amount, therefore, he was liable under section 506, P.P.C.

9. ' Mr. Salman Ansari, learned counsel appearing for the State has adopted the arguments of Mr. Farooq Naik, and has further contended that applicant should have first moved application under section 249-A, Cr.P.C. Before the trial Court.

10. ' I have considered the contentions of the learned counsel and have gone through the direct complaint and other documents produced by the parties on record.

11. The bare reading of the complaint will show that there were business dealings between the complainant/respondent and the accused/applicant No,1, A and the question of entrustment and breach of trust did not arise at all. The breach of trust is defined under section 405, P.P.C. Which reads as under:- "Whoever, being in any manner entrusted with property with any dominion over property, dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'."

12. ' It is the case of complainant/respondent that the accused initially used to purchase the goods on cash, but later on he used to purchase the same on credit with the result that his account was indebted heavily. That on 11-7-1980, the accused acknowledged the debit amounting to Rs,12,39,430 and promised to pay the same in monthly installments of Rs,20,000 to Rs,30,000 but he failed to do so. That the accused issued cheques of Rs,6,00,000 which were dishonored. It was further alleged in the complaint that since the accused refused to pay the above amount, he had committed an offence under section 406/420, P.P.C. From the above facts it is clear that the transaction was of civil nature, and the present case was filed in order to harass him. No report was lodged with the police and the direct complaint was filed after a long time. In case of Abdur Rashid and two others v. The State and another 1987 P Cr. L J 1380, it was held by this Court that: "The allegations set out in the complaint smell of mala fides. The complainant did not lodge any F.I.R. Against the applicant/accused and direct complaint was filed after about 1-1/2 months. The delay was not explained. In the facts and circumstances of the case, the transaction appeared to be purely of civil nature and, therefore, the proceedings were quashed."

13. ' In the case of Muhammad and another v. Assistant Commissioner, Narowal and others 1987 SCMR 7951 it was held by their Lordship of the Supreme Court that: "On the face of it, the dispute between the parties is of civil nature. There is nothing on record to indicate that at the time when the petitioners took money from the complainant, they had no intention or were not in a position to give lease of cinema canteen to the complainant."

14. ' Therefore, proceedings under section 406/420 were quashed.

15. ' The offence under section 506, P.P.C. Was distinct offence, and was not committed in the same transaction and, therefore, it could not be joined and tried along with offence under section 406/420, P.P.C.

16. From the above discussion, I am of the considered view that no case was made out against the applicant/accused under section 406/506, P.P.C. And the proceedings will not end in conviction of the applicant.

17. ' The last contention of Mr. Salman Ansari, learned counsel appearing for the State that the applicant should have moved the trial Court first under section 249-A, Cr.P.C. Is untenable, inasmuch as the powers of a trial Court under section 249-A, Cr.P.C. And the powers of this Court under section 561-A, Cr.P.C. Are co-extensive, and, therefore, there was no bar in moving the High Court without approaching the trial Court under section 249-A, Cr.P.C.

18. ' In the case of Mian Munir Ahmed v. The State 1985 SCMR 257, it was held that: "The powers of the trial Court under section 249-A, Cr.P.C. And section 265-K, Cr.P.C. Are co- extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to. It would of course be proper to approach the trial Court in the first instance, but there is nothing to bar the High Court from entertaining in any appropriate case, an application under section 561-A, Cr.P.C. Directly."

19. In view of the above discussion, I allow this application and quash the proceedings pending against the applicant under section 406/506, P.P.C. Before the S.D.M. Civil Lines, Karachi (South). I had decided the above application on 23-8-1987 by a short order and these are the reasons for the same.