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Criminal Miscellaneous Application No. 377 of 1968, decided on 18th April 1969.

S. 406 read with Criminal Procedure Code (V of 1898), S. 561‑A‑Abuse of process of Court ---Parties carrying on business transactions‑Accused admitting liability, if any, and undertaking to settle business account‑Dispute, held, civil in nature and prosecution started to overcome difficulties likely to arise in civil litigation‑Prosecution under S. 406 quashed.

Ghulam Muhammad v. Muzammal Khan and others P L D 1967 S C 317 ref.

G. M. Shah for Applicant.

U. Niamat Moulvi for Respondents.

Dates of hearing: 3rd March and 7th April 1969.

The petitioner is being prosecuted in the Court of the Third Additional City Magistrate, Karachi at the instance of the first respondent for not returning a sum of Rs. 15,165 which had been deposited by the said respondent on amanat with the petitioner and has filed this application under section 561‑A, Cr. P. C. to quash the said proceedings. The plea of the peti tioner is that subject to the taking of accounts between him and the said respondent he has always acknowledged liability for his dues but that, on account of his financial difficulties he has not been able to honour his commitment. But according to the first respondent, the petitioner has dishonestly repudiated his liability, therefore he was compelled to file a complaint against him under section 406, P. P. C.

2. In support of his case, the first respondent has examined himself and two witnesses Muhammad Ramzan and Ghulam Muhammad Butt. In his statement in the lower Court, the first respondent has said that he had, on different occasions, advanced sums of money to the petitioner, the total amount of which comes to Rs. 15,165. Even in his statement he has not given the date of the advances, but has only said that these advances were made before 2nd April 1968 and that the petitioner had executed a document on 2nd April 1968 promising to return the entire amount by 1st July 1968 which he produced and which was marked as Exh. A in the lower Court. He has further said that the petitioner had made several promises to him to repay the amount, but had failed to repay him the said amount. In support of his case, he has produced two letters written by the petitioner dated the 15th November 1967 and 19th June 1968 and said that the second letter was an attempt to blackmail him and repudiate liability, therefore he had sent a notice to the petitioner dated the 29th July 1968 and by his Advocate's reply dated the 7th August 1968, the petitioner had dishonestly repudiated liability for the amount due from him, therefore he had filed a complaint. It is therefore clear from the first respon dent's evidence that his case against the petitioner is based solely on the petitioner's letters to him. But before I examine these letters I shall briefly consider the evidence of the witnesses examined by him.

3. P. W. Muhammad Ramzan said that he was the first respondent's friend and because the first respondent had given a surd of Rs. 15,165 to the petitioner he had also given a loan of Rs. 100 to the petitioner. As the petitioner did not repay his loan, he spoke to the first respondent about it who informed him of the petitioner's misappropriation of the sum of Rs. 15,165 advanced by him to the petitioner. Muhammad Ramzan has not produced any evidence to prove his alleged loan and merely because it was not repaid it does not mean that the petitioner had misappropriated that monies of the first respondent. Therefore, the evidence of this witness appears to be totally irrelevant to the question whether the prosecution has made out any case for misappropriation against the petitioner.

4. P. W. Ghulam Muhammad Butt also claims to have given a loan of Rs. 850 to the petitioner which has not been returned to hiss by the petitioner. He has further said: ----

"Sometimes back, the accused wrote me a letter in which he had written that he would refund my aforesaid amount to me but in spite of that he did not refund the same. I shall produce that letter afterwards, thus the accused has dishonestly misappropriated the aforesaid amounts of mine as well as of the complainant both of which were kept with him as Amanat' and now he refuses to pay the same."

Ghulam Muhammad Butt has not produced the petitioner's letter to which he has referred in his statement. In these circumstances, the mere allegation of Ghulam Muhammad Butt does not help to show that the petitioner had dishonestly misappropriated the loan received by him for the first respondent, therefore the evidence of this witness is also totally irrelevant to the first respondent's case against the petitioner.

5. I shall now consider the letters of 19th June 1968 and 7^th August 1968 on which the first respondent relies. The letter of 19th June 1968 (Exh. C) states as follows: ---

"From Lahore

Dt 19/5.

Dear Amanullah Sahib,

Assalam Alaykum,

It' is very sad that you defamed me at the Mall, Lahore saying that Ghulam Rasool had usurped your Rs. 15,000 and that you had stamp executed by Ghulam Rasool. Brother you had obtained that stamp at the time I, along with my men were going to India. Thank God that the shop where you have defamed me from that very shop I had taken one man and exchanged the Pakistani currency into Indian currency. You did not appreciate my nobility. Whatever you have to do you do it today and don't leave it for tomorrow. What is to happen cannot be avoided."

Because of the reference to a foreign exchange transaction, which would prima facie be illegal, the first respondent has described the petitioner's letter as a letter written to blackmail him. The petitioner has not produced any evidence in support of the alleged threat of blackmail, nor does it follow that because the petitioner made this reference that he intended to blackmail the first respon dent. In any case, I do not find any observations in this letter which would amount to a refusal by the petitioner to honour his commitments. The letter of 7th August 1968, on which the first respondent relied in support of his plea that the petitioner had committed an offence under section 406, P. P. C. has been written not by the petitioner but by his Advocate. In reference to the respondent's allegation of amanat, it is true that the Advocate of the petitioner has denied that there was a cash entrustment. He has stated that the document executed by the petitioner, is which the petitioner had described the sum of money received by him as being held on amanat, was executed by the petitioner at the first respondent's request and "it was for the settlement of accounts only". He has therefore denied the allegation that the petitioner had committed breach of trust or any criminal offence. He has further said that there was an account between his client (the, petitioner) and the first respondent, that his client had asked the first respondent to come to Lahore and settle accounts and then he has stated:‑

"My client is always prepared to settle the business account and he has prepared to pay if something is outstanding towards my client. My client, according to his account, has cleared the accounts and has to pay nothing to you."

Even learned counsel for the first respondent could‑not contend that the petitioner had committed any offence merely because ha had contended that the first respondent had to settle accounts with him on account of the business transactions between him and the first respondent. However, learned counsel said that paragraph 3 of the letter of the petitioner's Advocate, which I have quoted above, showed that the petitioner had dishonestly misap propriated the first respondent's monies. This was because the petitioner's Advocate had said that the petitioner "has to pay nothing to you (first respondent)". But these words have reference to the petitioner's claim that there was an account between the parties and, as he has clearly admitted liability for any amount that may be found due from him on taking accounts, it is clear that the letter is not a repudiation of liabilities due from the petitioner. The plea of the first respondent that this A letter of 7th August 1968 showed the petitioner's dishonest intentions is therefore not correct, and it seems to me that the dispute between the parties is of a civil nature, and that the prosecution against the petitioner has been filed to overcome the difficulties that might arise in civil litigation.

6. However, learned counsel for the first respondent relied on the observations of the Supreme Court in Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 S C 317). In reference to proceedings under section 561‑A, Cr. P. C. the Supreme Court has observed in the said judgment as follows:‑

"In a case where a Court is properly seized of a criminal proceeding and has after examining the evidence taken the view that there is a prima facie case to be tried and framed charges the High Court is not competent to quash the proceed ings unless it is satisfied that even if the evidence adduced is left unrebutted no charge can at all be framed. Then and only then can the proceedings be quashed. Here the evidence is, by no means, of that nature and it cannot be said that if it is left unrebutted no case has at all been made out against the respondents."

I am in respectful agreement with the observations quoted. However, having examined the prosecution evidence, I am of opi nion that even the first respondent's own statement and the letter on which he relies fail to establish any case under section 406 or 420, P. P. C. against the petitioner. I may observe here that I am fortified in my opinion by the conduct of the first respondent in contesting this application before me. On 27th January 1969 the Advocate for the petitioner had stated that the petitioner had never repudiated liability for any amount due from him. The learned counsel for the first respondent wanted the petitioner to come from Lahore to record such an admission. Learned counsel for the petitioner produced the petitioner, because he thought that such an admission by the petitioner would satisfy the first respondent and disposed of the proceedings in the lower Court. After the petitioner's statement was recorded, the first respondent insisted on contesting these proceedings. The first respondent was entitled to contest the proceedings, whether or not the petitioner made an advance but his behaviour in making the petitioner come from Lahore to record an admission unnecessarily delayed the hearing of this application and leads to the inference that he was trying to obtain an admission from the petitioner which might be useful to him in any civil litigation between the parties.

6. In the circumstances discussed I am of opinion that even on the footing that the prosecution evidence is true, the prosecu tion has failed to make out any case against the petitioner, and the proceedings filed against the petitioner are an abuse of the process of the Court. The application is therefore allowed and the proceedings against the petitioner in the Court of the Third Additional City Magistrate, Karachi are quashed.

Petition allowed.

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