ABDUL GHANI vs KANDERO AND ANOTHER

' By his application under section 561-A, Cr. P. C. The applicant seeks the quashment of the proceedings pending against him before the Civil Judge and F. C.

1., Thatta, under sections 406 and 420, P. P. C.

2. Briefly narrated, the facts of the case are that the applicant is a permanent resident of Karachi.

He owns certain property in respect of which there is some litigation pending between him and his tenants. According to him, one of his tenants, Abdul Hameed with whom litigation is going on caused the ling of the instant complaint under sections 420 and 406, P. P. C. Against in the Court of Civil Judge and F. C. M., Thatta through respondent No, 1 with the allegations that the applicant had promised him to sell his two buffaloes which were handed over to him by the respondent No, 1 on the understanding that after the sale of the buffaloes the sale proceeds will be handed over to him.

But after the disposal of the buffaloes the sale proceeds were not remitted to the respondent No, 1.

3. I have seen the complaint which was filed on 10-9-1974. The main allegations in the complaint are that about two months prior to the filing of the complaint the applicant approached the respondent No, 1 and asked him to hand over his two buffaloes to be sold at Karachi where the rates were comparatively high. The parties agreed to this arrangement and consequently, the respondent No, 1 handed over two of his buffaloes to the applicant for being sold at Karachi. About a month after the handing over of the buffaloes the applicant agreed to pay to the respondent No, 1 the sale proceeds of the buffalos which according to him came to Rs, 3,500. In the beginning he delayed the payment under one pretext or the other but finally he refused to pay the amount as such instant complaint was filed against him under sec-lions 420 and 406, P. P. C.

4. I have gone through the complaint. It does not disclose any ingredients of section 420 or 406, P. P.

C. Apparently, the respondent No, I had entered into an agreement with the applicant for the sale of buffaloes and now when the buffaloes had already been sold away the question was one of recovery of money. It has not been disclosed in the complaint that there was any element of cheating, enticing or entrustment so as to attract the provisions of sections 420 and 406, P. P. C. On the other hand, the respondent No, 1 willingly handed over the buffaloes to the applicant. The contract between the two was purely of civil nature. Now if the applicant was delaying the payment of sale proceeds of the buffaloes he would be under a civil liability to make the payment of the amount. Under the circumstances, by no stretch of imagination it can be inferred that it would also be a case of cheating or misappropriation when the element of criminality is missing from the very beginning.

5. The learned counsel for the applicant has relied upon Sadruddin alias Sadru v. Abdul Khaliq and another (1). In this case also the buffaloes had been entrusted for delivery to some other person but the same were not delivered to the person whom they were required to be delivered. On the other hand, the buffaloes were sold away and the sale-proceeds were not paid to the applicant.

The applicant instead of filing a civil suit for recovery of money filed a criminal complaint under sections 406 and 420, P. P. C. This Court held that "since subsequent to the entrustment of buffaloes the complainant had agreed to accept the sale-proceeds of the buffaloes therefore, the element of criminal liability was absolutely wiped out. In the instant case also there is no element of criminality involved. It is a case in which it was promised by the applicant that he would sell the buffaloes of the respondent No,1 and hand over the sale proceeds after the disposal. After the disposal of the buffaloes he refused to pay the money as has been described by the respondent No, 1 in the complaint. If the allegations contained in the complaint are correct, a suit for the recovery of money would be the proper remedy to be sought by the respondent No, 1.

6. In the light of above discussion I find it a fit case for interference within the meaning of section 561-A, Cr. P. C. The proceedings pending in the Court of the Civil Judge and F. C. M., Thatta against the applicant are hereby quashed.

(1) 1973 P Cr. L J 37