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Criminal Revision Application No. 223 of 1966 and Criminal Reference No. 11 of 1967, decided on 3rd November 1967.

S. 420‑Cheating‑Principal consideration for offence under S. 420‑Representation on basis of which person transferring property induced to transfer property must be false‑Sine qua non of offence : whether person deceiving wriggling out of original transaction entered into between him and person deceived.

Talmiz S. Burney for Applicant.

S. Murtaza Hussain for the State.

Sh. Mir Muhammad for Respondent No. 2.

Date of hearing : 3rd November 1967.

The applicant Saifur Rehman was convicted by the Additional City Magistrate, Mr. M. A. Bari Khan on the 24^th of May 1966; under section 420, P. P. C. and sentenced to suffer rigorous imprisonment for one year and pay fine of Rs. 1,000 in default rigorous imprisonment for three months. He filed an appeal which was dismissed by the Additional Sessions Judge on the 8th of December 1966. It is against this ,judgment that the present revision application has been filed. It arises out of the following facts.

2. The applicant approached Syed Muhammad Amir for a loan of Rs. 10,500 on the 17th of September 1964 to straighten out his affairs in respect of his newspaper Nai Jamhuriat. It is alleged that the applicant showed to Syed Muhammad Amir a cheque for Rs. 17,500 dated the 21st of September 1964, in his favour on Habib Bank. He also promised to give a post‑dated cheque for a sum of Rs. 10,500. Syed Muhammad Amir is said to have paid Rs. 500 in cash and on the same day and withdrew Rs. 10,000 from his bank and gave that amount to him on the following day. The applicant as per his promise gave Syed Muhammad Amir a post‑dated cheque for Rs. 10,500. This cheque was presented but was dishonoured. The applicant thereafter gave three cheques on 12th October 1964, 23rd September 1964 and 2nd December 1964, but they were all dishonoured. The complainant consequently came to the Court of the City Magistrate and filed his complaint under section 420, P. P. C. on which the Magistrate issued process of bailable warrants against the applicant.

3. The case of the applicant before the Court was that he had taken Rs. 5,00 from the complainant but the complainant had taken a pro‑note from him for Rs. 10,000 and had agreed to charge him interest at the rate of Rs. 500 a month. According to the applicant, he had been paying interest regularly but was not able to pay the principal amount because of certain unavoidable circumstances. He examined one witness in defence.

4. Regardless of whether the defence put across by the applicant was true or not, the fact remains that the two Courts below misconceived the provisions of section 420, P. P. C. and convicted the appellant. The principle consideration for an offence under section 420, P. P. C. is that a representation on the basis of which the person transferring the property is induced to transfer his property must be held to be false. In this particular case the representation on the basis of which the complainant is alleged to have been induced to give sum o Rs. 10,500 was a cheque for Rs. 17,500 in favour of the applicant on the Habib Bank and the demand of the applicant for the purpose of straightening out his affairs regarding Nai Jamhuriat. There is not a word on record to even remotely suggest that these representations were false. The only ground on which the two Courts below have convicted the applicant is that the applicant by repeatedly giving cheques which were dishonoured, had intended from the very initial stage to deceive the applicant and receive money from him. Even in this respect, in my opinion, the Courts below are in error. It is not necessary in every case to infer that the intention of a particular person is to deceive because he gives cheques which are dishonoured. The sine qua non of the whole issue is whether the person deceiving is wriggling out of the original transaction entered into between him and the person deceived. In this particular case, the applicant has in clear terms stated that he had taken a loan from the complainant but had not paid it because of his unavoidable circumstances. The terms on which this loan was taken may be a matter of dispute between the applicant and the complainant but the terms on which the loan was taken cannot be construed to be something on the basis of which criminal proceedings can be launched. In my opinion, the facts of this case clearly indicate that the matter was purely of a civil nature. The learned A. C. M. should not have in this particular case convicted the applicant under section 420, P. P. C. In fact the learned counsel for the respondent Syed Muhammad Amir tells me that Syed Muhammad Amir has already filed a civil suit which is pending before the Court. In view of what I have stated above, I see no basis, on the evidence brought on record, on which the conviction under section 420, P. P. C. recorded against the applicant can be sustained. The revision application of the applicant is consequently accepted and he is acquitted. Fine, if paid by him, shall be refunded to him. The application for reference for enhancement ipso facto stands dismissed.

Revision accepted.

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