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Criminal Miscellaneous Application No. 296 of 1968, decided on 11th March 1969.

S. 561‑A‑Com plaint under section 420, P. P. C.‑Magistrate without applying his mind to facts of case ordering issuance of summons to person complained against‑Proceedings quashed.

Applicant in person.

Manzoor Hussain for the State.

Faseehuddin for Respondent No. 2.

Date of hearing : 11th March 1969.

The facts which form the back ground of this application are that respondent No. 2 placed an order with the applicant for the supply for a refrigerator for Rs. 2,200 and paid Rs. 550 which amount was equal to 25 percent. of the total price. The order form which is signed by the representative of the applicant and respon dent No. 2 contains the description of the article as follows :‑

"Philco refrigerator‑8.5 c.ft. U. S. A. origin‑"as good as new‑P. O. 2193."

When the words "as good as new" were noticed by respondent No. 2 a question was raised according to his counsel as to what they meant. Clarification was sought by writing two letters dated the 8th of June 1967 and the 7th of July 1967. The first latter was written by the representative of the applicant at Khanewal to the applicant who was at Karachi and inter alia contained the following statement:

"They (the purchaser) pointed out that the phrase as good as new' is causing confusion in their minds. They want to be sure that the items offered by you for sales are in brand new condition, which please clarify."

Counsel for respondent No. 2, the purchaser, says that the required clarification was not supplied ; therefore the second letter was written by the representative of the applicant in which he stated as follows :‑

"I strongly request your honour to please clarify this point telegraphically to me or the party. The party also thinks that if the item happened to be a second hand, then it would be a great fraud with them and they will have to knock the door of the Court of law to get their grievance redressed."

Counsel for the purchaser says that in spite of the above letters from the representative of the applicant, the required clarification was not given. The applicant, however, says that it was given and that it was to the effect that the expression "as good as new" was intended to indicate that the refrigerator was reconditioned and that all defective parts, if there were any, had been replaced. However that may be, the case of respondent No. 2, according to counsel at present is that the expression "as good as new" does not mean new ; but it necessarily implied that it was in perfect working order. The explanation which the applicant has given amounts to be the same.

2. According to counsel for respondent No. 2, the purch aser, the applicant insisted that the balance of the price, which was 75 percent. of the total price, be paid against the delivery of goods through the National and Grindlays Banks, Khanewal, respondent No. 2 therefore, agreed to clear the documents and paid Rs. 1,650 to the bank and took delivery of the package which contained the refrigerator. The package was taken, according to counsel for respondent No. 2, to respondent No. 2's shop in the presence of the representative of the applicant and in the company of a mistri. At the shop the package was opened. It was found that the package was not in a sound condition at the time of its delivery by the bank because the wooden planks, of which the crate was made, were broken. According to counsel for respondent No. 2, the machine which was found in the package was defective. The representative of the applicant wrote a letter to the applicant on the 8th of November 1967 stating in it as follows:

"The unit was not covered properly, the representatives of Messrs Zamzam Dawakhana (respondent No. 2 the purchasers) said. The unit was brought to their shop by them and the planks of wood were broken. The party showed their angerness while seeing the condition of the unit. An experienced electrician was called to examine the condition of the unit who gave his views that it is very old and wiring of the unit is completely dislocated and many parts are missing. Further he added that about Rs. 600 will be involved if the unit is brought in working order. The party was very furious hearing the views of the electrician."

In consequence of the above situation respondent No. 2 filed a criminal complaint under section 420, P. P. C. in the Court of S. D. M., Khanewal on the 21st of November 1967. It has been officially translated in the office of this Court and shows that the main allegation is contained in paragraph 4 of it as follows:

"When this form was put before the complainant for signa ture, he asked Abdul Aziz, the representative, to clarify the same, whereupon the aforesaid representative satisfied the complainant saying that the refrigerator shall be quite new and the representative wrote two letters Nos. S. R‑6‑67 dated 8‑6‑1967 and 11‑SR‑67 dated 6‑7‑1967 to the accused (the present applicant) asking him to clarify the words as good as new' and that only a new one shall be acceptable to the complainant otherwise he (accused) shall be held responsible for cheating."

The magistrate recorded the statement of the complainant under section 200, Cr. P. C. and referred the case for criminal enquiry and report to the Naib‑Tehsildar, Khanewal under section 202, Cr. P. C. The Naib‑Tehsilder recorded the evidence of the complainant as well as the evidence of two witnesses who were Mahmood Ali P. W. 1 and Abdul Rahim P. W. 2 and submitted his report to the S. D. M., Khanewal. The report consists of four or five lines and is dated the 6th of December 1967. It is stated in it that the statement of the complainant and documents Exhs. P‑A to P‑F indicate that an offence under section 420, P. P. C. had apparently been committed. When the report was presented before the S. D. M., he ordered as follows :‑

"Complainant is present with counsel. Seen the inquiry report of Naib‑Tehsildar, Khanewal. Issue summons to the accused under section 420, P. P. C. to 17‑1‑1968."

In pursuance of the summons the applicant did not appear in Court and after obtaining adjournments made the present applica tion for revision. The main grounds for revision are that Civil Courts of Karachi have the jurisdiction to settle the disputes between the parties in this case and that the criminal case filed by respondent No. 2 amounted to an abuse of the process of law.

3. A perusal of the above facts creates an impression that respondent No. 2 fell dissatisfied with the condition of the refrige rator and became angry with the result that he filed a criminal complaint. I enquired from learned counsel for respondent No. 2 as to how the ingredients of section 415 read with section 420, P. P. C. can be said to exist in this case. Counsel replied that the fact that a vague expression like "as good as new" was deliberately used by the applicant and that on demand for its clarification explanations were avoided but insistence was made on the payment of the balance of the price against the delivery of documents; indication that there was an intention to cheat and that it has been carried out in practice. Counsel says that the representative of the applicant had given an assur ance that the article would be "quite new". The stand of counsel for respondent No. 2 does not show that the expression "as good as new" which was used in writing the order form could have created any impression on the mind of respondent No. 2 that the refrigerator was going to be a new article. As a matter of fact counsel for respondent No. 2 conceded that a new article was not expected. He said that it was expected that it would be in proper working condition. This legitimate expectation, according to counsel, was not fulfilled.

4. It is unnecessary to take exception to the above stand of counsel for respondent No. 2 because the question which needs determination is whether the condition in which the article was found was the result of cheating or amounted to the breach of the contract. Counsels stand is that it was cheaing because there is evidence, according to him, in the above mentioned circumstances of an intention to cheat. In reply to this the applicant has explained that according to the above evidence the package was broken which itself is enough to indicate that even a sound refrigerator despatched in that package could have been damaged in transit. The applicant says that this in fact was the true situation. According to him the refrigerator was sent in sound condition but it is possible that it was damaged on the way. It is significant here to note that respondent No. 2 did not demand repairs or replacement of the damaged articles but has taken the stand that owing to the vagueness of the expression "as good as new" combined with an alleged unwillingness to clarify it, there should be an inference of cheating. This stand is obviously erroneous. On the contrary in the alleged vagueness of expression and in the alleged unwill ingness to provide clarification there were warnings to respondent No. 2 not to get away with the expression that a new article was coming. Moreover, in the circumstances of the case, in the complaint and in the statement of the complainant there is nothing to show that the article was defective when it was despatched.

5. Mr. Manzoor Hussain counsel for the state has expressed his inability to support the order of the S. D. M., Khanewal by which he entertained the complaint and ordered the issuance of summons to the applicant. The order of the S. D. M. dated the 14th of December 1967 does not show that he applied his mind to the facts of the case.

6. Let me make it clear that the above discussion is from the point of view of criminal liability in which the benefit of all omissions goes to the accused and not from the point of view of civil liability, if any.

7. In conclusion I quash the proceedings and direct that a copy of this order be sent to the S. D. M., Khanewal for his personal information.

Petition accepted.

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