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Criminal Miscellaneous Application No. 100 of 1964, decided on 21st December 1964.

S. 561‑A‑‑Complain under S. 408, P. P. C.‑Dispute between complainant and accused as proved by evidence on record relating to settlement of accounts arising out of partnership between them‑‑Civil suits on same subject‑matter already filed 6y complainant pending in Courts Complainant found to 6e endeavouring to use criminal Courts for enforcing a civil liability‑Complaint, hold, an abuse of process of Court‑Proceedings quashed.

Fazlur Rahman v. Muhammad Yamin and 2 others P L D 1964 Kar. 600 ; Zafar Niazi v. Riaz‑ud‑Din P L D 1958 Lah. 738 and Mahmood‑ul‑Hassan v. Imtiaz Khan P L D 1963 Lah. 481 ref.

Raja Muhammad Anwar for Applicant.

Respondent in person.

Mrs. Salima Nasiruddin for A. A.‑G. for the State.

Dates of hearing : 5th October and 21st December 1964.

This is an application under section 561‑A of the Code of Criminal Procedure for quashing the proceedings in the case of M. Moinuddin H. Khan v. M. Sadiq Khan under section 408, P. P. C. now pending in the Court of A. C. M. No.VII, Karachi.

2. The brief facts giving rise to this matter are that on the 14th of March 1963 the present opponent M. Moinuddin H. Khan filed a direct complaint in the Court of Mr. Muhammad Yousuf Khan, 7th A. C. M., Karachi, against the applicant under section 408, P. P. C., alleging that the applicant had been employed by him on the 30th of August 1962 to handled his estate business. A contract had been entered into by the parties on that day wherein the emoluments of the applicant were set out. These emoluments included besides a monthly salary of Rs. 2,000, a conveyance allowance of Rs. 20 per day, free accommodation for the applicant on a monthly rental ranging between Rs. 600 to Rs. 1,000 and over and above all this a two anna share in the profits of the business. The complaint further stated that the complainant bad agreed to place a car at the disposal of the applicant‑accused and pursuant to this agreement he had entrusted an Opel car bearing No. KAM 7595 to the applicant‑accused. The complaint went on to state further that certain documents had also been entrusted by the complainant to the applicant‑accused and that some four months latter in January 1963 when the complainant rescinded this contract and called upon the applicant‑accused to return to the complainant the property entrusted to .the applicant, the applicant, refused to do so, and therefore this complaint was filed against him in respect of offences under sec tion 406/408, P. P. C. The learned Magistrate after examining the complainant on oath passed an order on the 19th of March 1963, stating that a prima facie case under section 408, P. P. C., had been made out against the applicant‑accused and directing the issue of summonses against him for appearance in his Court on the 5th of April 1963. The applicant‑accused appeared in Court on that day and was directed to furnish security in the sum of Rs. 7,000 which he did. Thereafter there were a number of hearings in the year 1963 at many of which the complainant remained absent so that it was not before the 9th of December 1963 that the complainant's evidence was recorded by the trial Magistrate. The complainant was then directed to produce his further evidence but there were delays in his doing so, so that on the 4th of March 1964 the present revision application was filed in this Court, was heard and admitted to regular hearing and proceedings stayed in the trial Court until the disposal of this revision application.

3. I have heard Mr. Raja Muhammad Anwar Advocate, on behalf of the applicant, Mrs. Nasiruddin on behalf of the State and the opponent in person.

4. Mr. Raja Muhammad Anwar has submitted that this complaint is entirely misconceived because the deed of partnership drawn up and executed by the applicant and opponent on the 30th of August 1962 clearly shows that the applicant is a partner and not a clerk or a servant or employee of the opponent within the meaning of section 408, P. P. C. He has referred me in this connection to the actual deed of partnership and to its contents. He has also taken me through the correspondence exchanged between the parties through their Advocates and parti cularly the first notice served by the Advocate for the opponent complainant upon the applicant‑accused on the 1st of January 1963, i.e. before the filing of the complaint in which the opponent complainant refers to the partnership deed executed between the parties on the 30th of August 1962 and to the fact that the applicant‑accused was his working partner. This notice also recites that the partnership which was a partnership at will was rescinded through this notice and the applicant‑accused was called upon to hand over to the complainant‑opponent his account books, office files and other important business documents. Mr. Raja Muhammad Anwar pointed out that in this the first notice served on behalf of the opponent‑complainant upon the applicant accused there is no mention of the return of any car nor of Rs. 9,000 subsequently demanded by the complainant opponent from the applicant‑accused. Finally the learned Advocate appearing on behalf of the applicant contended that in view of the inordinate delay in the prosecution of this complaint, and the fact that admittedly it was founded on a contractual liability which could never form the basis of a criminal action, this complaint is entirely misconceived, is an abuse of the process of the Court and should therefore be quashed. The learned Advocate referred me to two civil suits filed by the opponent against the applicant and also to certain authorities in support of his contentions.

5. Mrs. Nasiruddin appearing on behalf of the State submitted that the applicant comes within the category of a servant within the meaning of section 408, P. P. C. and that he himself admitted this position in his reply of the 14th of January 1963 to the complainant's notice of the 1st of January 1963 wherein he stated that "the deed executed by the parties on 30th August 1962 is in fact a partnership deed‑cum‑service contract . . " She further submitted that the present application was premature fn that so far only the complainant had been examined and his further and additional evidence had not come on record. The opponent M. Moinuddin H. Khan contented himself with pointing out that if his complaint against the applicant was not a true one, then why was the applicant afraid of it and why was he seeking this short cut by praying for quashment of the criminal proceedings against him.

6. I have examined the papers in this matter including the partnership deed, the correspondence exchanged between the partied before the filing of the complaint, the complaint itself, the deposi tion of the complainant and the case diary setting out the progress in this case in the Court of the trial Magistrate. To me it is plain from a perusal of all these documents that the dispute between the opponent and the applicant relates in the main to the settlement of their accounts arising out of the partnership entered into between them and that through this complaint the com plainant is endeavouring to use the criminal Court for the purpose of enforcing a civil liability. The deed of partnership entered into between the parties on the 30th of August 1962 clearly states that the parties have mutually agreed between themselves to carry on an estate business in partnership and that the party of the second part, namely, the present applicant being a working partner is entitled to certain emoluments including a share in the profits of the partnership business. The very first notice addressed to the Advocate for the opponent‑Complainant to the applicant‑accused on the Ist of January 1963 repeats that there was a deed of partnership entered into between them as a result of which the applicant was taken on as a working partner to handle the estate business. This letter also states that

"On 1‑12‑1962, my client received an intimation from you that you would like to stop your work and retire from partnership business on the ground of your ill‑health."

This notice concludes with the words:

"Take notice that for reasons given above, the said partnership which is at will is hereby rescinded and you ace called upon to hand over the receipts, account books, office files and other important business documents etc., which are in your possession within fifteen days from the date of receipt of this notice failing which appropriate legal action shall be taken against you entirely at your risk as to cost and consequences."

It is significant that there is no mention of any Opel Car or the return of such a car in this notice.

7. I further observe that the opponent has tiled two civil suits against the applicant being Civil Suit No. 156 of 1963 now pending in the Court of Mr. Ali Dost Muhammad Bugti, 5th Civil Judge, Karachi and Civil Suit No. 54 of 1964 in this High Court. In para. 12 (b) of the plaint in Suit No. 54 of 1964 pending in this High Count the opponent has prayed for :‑

"declaration that the defendant M. Sadiq Khan was an employee of the plaintiff between the period 1‑9‑1962 to 31‑12‑62 and the Opel Car No. KAM 7595 is the exclusive property of the plaintiff and the said defendant is and was not entitled to retain the same and is bound to return the same to the plaintiff and also liable to pay damages and/or compensa tion to the plaintiff for its wrongful retention and use."

These two civil suits filed on behalf of the opponent against the applicant relating to the same subject‑matter of the present complaint would clearly indicate that the opponent is himself. I aware that his case against the applicant is based on a contractual liability and is essentially a civil and not a criminal matter.

8. Finally it only remains for me to notice certain cases referred to by the learned Advocate appearing on behalf of the applicant. The first of these is my own judgment in the case of Fazlur Rahman v. Muhammad Yamin and 2 others (PL D 1961 Kar. 600) in which the complaint under sections 408 and 420, P. P. C., against Fazlur Rahman was quashed as neither the first information report nor the evidence recorded by the Magistrate disclosed any offence against Fazlur Rehman. The next case relied upon by Mr. Raja Muhammad Anwar is the case of Zafar Niazi v. Riaz‑ud‑Din (P L D 1958 Lah. 738) wherein Changez, J. relying upon the bare statement of the complainant under section 200, Cr. P. C., held that it did not disclose any offence and therefore the High Court had jurisdiction to set aside the order summoning the accused and to quash the proceedings. The learned defence Advocate also relied upon the judgment of Ortcheson, J. in the case of Mahmood‑ul‑Hassan v. Imtiaz Khan (P L D 1963 Lah. 481) and in particular to the passage therein wherein his Lordship stated that "it is well settled that an attempt to enforce civil liability through the machinery of the Criminal Courts constitutes an abuse of the process of the Court and that when a High Court has reason to believe that such a procedure has been adopted, the proceedings should be quashed". It is unnecessary to burden this short order with further rulings relied upon by the learned Advocate appearing on behalf of the applicant. It will suffice to say that for the reasons given above I am of the opinion that the present complaint against the applicant at the instance of the opponent is an abuse of the process of the Court and deserves to be quashed and I therefore order accordingly.

Proceedings quashed.

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