Find a Lawyer

Criminal Miscellaneous No. 810 of 1967, decided on 4th July 1968.

Ss. 190 & 254 ----Facts of case making out a prima facie case against accused under criminal law‑Mere fact that complainant refrained from launching criminal prosecution against other parties‑Does not place any embargo upon complainant in starting criminal proceedings against accused.

J. S. Daver v. Iqbal Qadir and another P L D 1962 Pesh. 167 ; Mahmoodul Hasan v. Imtiaz Khan and another P L D 1963 Lah. 481 and Fazlurrehman v. Muhammad Yamin and two others P L D 1964 Kar. 600 distinguished.

Ss. 439 & 561‑A --Magistrate finding prima facie case against accused and after active application of his mind to facts of case framing charge Order of Magistrate not interfered with.

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

Ss. 439 & 561‑A Allegations contained in Police reports calling for enquiry by Court‑Such allegations cannot be dismissed as incorrect or unsustainable in absence of evidence to support inference.

Malik Shaukat for Petitioners.

Masood Ahmad Khan for the State.

M. B. Zaman for Defendants.

This order will dispose of Criminal Miscellaneous No. 810/ 1967 and 49 other connected petitions i.e., Criminal Miscel laneous 2391 to 2412 and Criminal Miscellaneous 2420 to 2446 of 1967.

2. The facts out of which these petitions have arisen are as follows :‑

There are two concerns run by the members of the same family in the name of Pak Shoes and Shoe Emporium in Anarkali, Lahore. Muhammad Ishaq is the head of that family and Farooq Ahmad, Jamil Ahmad, Muhammad Sadiq, Yusuf Amin, Muhammad Abid are his sons. The Pak Shoes is run by Farooq Ahmad, Jamil Ahmad, Muhammad Ishaq and Muhammad Abid. The latter is the Manager of the Pak Shoes. The Shoe Emporium is run by Yusuf Amin and Muhammad Sadiq.

These two concerns came to an understanding with Muhammad Bakhsh, a leather merchant of Paisa Akhbar Street, Anarkali, Lahore, that they would issue post‑dated cheques to their shoe‑makers and that Muhammad Bakhsh after receiving those cheques will issue leather worth the amount mentioned in the cheque to the person bringing the cheque. An under standing was given that the cheques will be cashed on presentation on the due date or thereafter. In pursuance of this arrangement both the above concerns issued bearer cheques to their shoe‑makers which were handed over to Muhammad Bakhsh in lieu of which he issued leather to them. Messrs Pak Shoes issued 82 post‑dated cheques on Habib Bank, Anarkali Branch worth Rs. 40,006'00 which were signed by Muhammad Abid. Similarly Messrs Shoe Emporium issued 64 cheques worth Rs. 26,739.50 on Habib Bank, Anarkali Branch and Muslim Commercial Bank. These cheques were presented in due course to Habib Bank and Muslim Com mercial Bank Lahore. It transpired that the relevant accounts of both the concerns in Habib Bank had been closed. The endorsement on the cheques made by the Muslim Commercial Bank showed that sufficient funds had not been made available by Messrs Shoe Emporium for payment of the cheques. A number of cheques had yet not fallen due when this happened but they were perhaps not presented on the due dates because the accounts in the Habib Bank had been closed and sufficient funds had not been made available to the Muslim Commercial Bank.

Muhammad Bakhsh after the cheques had been dishonoured approached the two concerns but no payment was arranged. He, therefore, sent a complaint to the Superintendent of Police under section 120‑B/420, Pakistan Penal Code against the persons mentioned above. It was alleged in the complaint that Muhammad Sadiq and Muhammad Abid as a measure of assurance had been accompanying some of the shoe‑makers, who handed over the cheques to the complainant. The police as a result of the investigation found that a case under section 420/120‑B had been made out and filed 50 challans in Court. The Magistrate took up challan No. 342/1 of 1964 as a test case which related to three cheques which had been dishonoured.

3. The case of the accused as it appears from the file and as submitted before me, is that they owed money to the complainant on account of these cheques but after some of the cheques had been dishonoured they had entered into two agreements on behalf of Pak Shoes and Shoe Emporium with the complainant on 3rd of January 1963, to the effect that the complainant would not present further cheques to the bank and they would be paying him Rs. one thousand and five hundred respectively per month with effect from the 15^th of January 1963, and receive back their cheques in proportion to the amount paid. The document executed by Pak Shoes Exh. P. K. purports to have been signed by Muhammad Abid and contains an acknowledge ment that his concern owed Rs. 41,506'00 to the complainant in lieu of 82 cheques. The document executed on behalf of Shoe Emporium Exh. P. H. purports to bear the signatures of Yusuf Amin and contains an admission that his concern owes to the complainant Rs. 26,693'00 in lieu of 64 cheques. These documents purport to bear the signatures of Muhammad Bakhsh complainant also but he denied the genuineness of these signatures. Mr. Shakir Hussain, P. W. 7, the Handwriting Expert of the Police Department was examined as a witness in Court, and he was of the opinion that the alleged signatures of Muhammad Bakhsh on these documents were not genuine.

4. The complainant also appeared as a witness and admitted in his cross‑examination that he had similar dealings with other concerns and some of the cheques issued by those concerns had also been dishonoured but in some cases he received the money after sending the cheque to the drawer and in some others he filed civil suits. He admitted that he had agreed to receive the amount by instalments in cases in which he had filed civil suits. He stated that he would not have resorted to criminal prosecu tion if the accused in this case had also entered into an agreement and had agreed to pay the amount in dispute by instalments. He further stated that he had resorted to criminal prosecution in this case because the amount was very heavy.

5. Mr. Hassan Raza, P. W. 8, Manager of Habib Bank, Anarkali Branch, appeared to state that the account of Pak Shoes and Shoe Emporium in Habib Bank had been closed on 11‑10‑62 as these concerns were not properly keeping their accounts and had not provided money to the bank for honouring the cheques issued by them. He also stated that the two concerns in this case had been informed of the closure of their accounts.

Some other witnesses also appeared to state that it was on the assurance of the accused that the complainant had agreed to receive post‑dated cheques and issue leather in lieu thereof.

6. The learned Magistrate after perusing the evidence charged the two accused namely Muhammad Abid and Yusuf Amin under sections 420/109 and 468/109 of the Pakistan Penal Code. The two other accused Muhammad Ishaq and Jamil Ahmad were discharged. Muhammad Sadiq did not figure as an accused in this challan although he does figure in some of the other challans.

7. The petitioners filed the present application and the connected applications under section 561‑A/439 of the Criminal Procedure Code alleging that no criminal prosecution can be sustained on the basis of the facts of this case, and that the matter was entirely of a civil nature. Their learned counsel, Malik Shaukat Ali, asserted that a civil suit having been filed no criminal proceedings could be started on the basis of the same allegations. He further asserted that on the facts so far brought on record no prima facie case had been made out against the petitioners. It was also asserted by him that the matter having been compounded the complainant could not be permitted to go behind the compromise and start criminal proceedings against the petitioners. In this connection he referred to the evidence of Noorul Hassan P. W. 6 who stated that during the investiga tion the complainant had agreed before the Investigating Officer to produce the originals of the agreements relied upon by the accused. This witness was cross‑examined by the prosecution and was declared as hostile. The Investigating Officer when put a question on this aspect of the case categorically denied this suggestion and stated that the complainant had never told him that he possessed the originals of these agreements nor did he undertake to produce them.

8. In order to support his contention on the legal plane the learned counsel relied on J. S. Daver v. Iqbal Qadir and another (P L D 1962 Pesh. 167), Mahmoodul Hasan v. Imtiaz Khan and another (P L D 1963 Lah. 481) and Fazlurrehman v. Muhammad Yamin and two others (P L D 1964 Kar. 600).

In the first case it was held that where the complaint disclosed a civil liability and no criminal offence could be made out, and the sole purpose of complaint was to enforce by coercion the enforcement of a civil claim, the proceedings shall be quashed.

In the second case it was held that the enforcement of civil liability through criminal Court with the object of the recovery of dues amounted to gross abuse of process of Court.

In the third case it was held that no criminal case was made out against the accused in the F. I. R. or in the challan or by evidence recorded by the Magistrate. The proceedings were, therefore, quashed. These cases are clearly distinguishable from the present case. The Court had found as a fact in all these cases that on their facts no criminal case could be made out. The learned counsel was not able to cite any authority to show that where a criminal case could be made out from the facts of a case the existence of civil proceedings will create a bar to the jurisdiction of the criminal Court to take cognizance of the matter. It was urged on behalf of the petitioners that the post‑dated cheque issued by other persons in favour of the complainant had also been dishonoured and yet he had not filed any criminal proceedings against them. I do not think any rule of estoppel can be applied against the complainant on account of these facts. He stated before the trial Court that in a number of cases he had received the amount due on account of dishonoured cheques and in some of them he had resorted to civil litigation. The fact that the complainant has refrained from launching criminal prosecution against other parties does not in any way place any embargo upon him in starting criminal proceedings against the present petitioners, if the facts of the case make out a prima facie case under the criminal law.

9. Now in this case the post‑dated cheques were admittedly issued for various dates and the complainant claims to have given leather to the shoe‑makers who brought these cheques in lieu of the amounts mentioned in these cheques. He had, therefore, parted with his property by acting on the assurance that these cheques shall be cashed on presentation, on or after the dates mentioned therein. This assurance has not been kept. It is also in evidence that Habib Bank had closed the accounts of both the concerns as they repeatedly failed to make funds available for cashing the cheques issued by them. It is also in evidence that sufficient funds were not available in the Muslim Commercial Bank, Lahore, when the cheques were presented to them. The issuance of these cheques carried with them an undertaking that the petitioners will make sufficient money available for their encashment on or after the dates mentioned in these cheques. Habib Bank had closed the accounts of both the concerns and had informed then about it. Nothing has been shown to me from the record that the petitioners even after this intimation took any steps to notify the complainant that the bargain had fallen through for want of money ‑‑and that he should not in future issue leather in lieu of the cheques presented to him.

10. As to the attack on the charge under section 468, P. P. C. the learned counsel relied on the evidence of Noorul Hasan P. W. 6 who as stated earlier was declared hostile by the prosecu tion and had been contradicted by the investigating officer. The complainant when in the witness box condemned the alleged agreements as forgeries and Mr. Shakir Hussain P. W. 7 has given an opinion that the alleged agreements do not bear the genuine signatures of Muhammad Bakhsh respondent. The learned counsel pointed out that during the investigation the accused had produced the opinions of two handwriting experts holding that the signatures of Muhammad Bakhsh on these docu ments were genuine. The petitioners if so advised can produce this evidence in defence.

11. The only question for consideration in the present case is whether the action of the Magistrate in framing charges against the petitioners is supported by evidence. The learned Magistrate has found a prima facie case against the petitioner and it will not be advisable to interfere in his order at this stage, in exercise of section 561‑A or section 439 of the Criminal Procedure Code.

In Ghulam Muhammad v. Muzammil Khan and four others (PLD1967SC317) one of the grounds raised before the High Court was that the dispute involved in that case was of a civil nature and the accused should not have been sent up for trial on the alleged criminal charges. The Magistrate had framed charges in three cases against the accused. The High Court quashed the proceedings. On appeal the Supreme Court reversed the judgment of the High Court. It was observed by their Lordships that if the evidence against the respondents disclosed a prima facie case then justice required that the trial should proceed according to law. It was further observed that the power given to the High Court under section 561‑A cannot be utilised so as to divert the ordinary course of criminal procedure as laid down in the procedural statute and that the High Court should be extremely reluctant to interfere in a case where a competent Court after examining the evidence produced before it has held that a prima facie case has been disclosed and has framed charges or summoned the accused to appear unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.

It is true that in the above case their Lordships were considering the provisions of section 561‑A of the Criminal Procedure Code, as section 439 does not appear to have been invoked in that case. In my humble view, however, section 439 does not give any enlarged power to the High Court in a case where a trial Court has framed a charge. The dictum of their Lordships of the Supreme Court will equally apply whether the powers of this Court are invoked under section 439 or 561‑A of the Code of Criminal Procedure . Section 254 of the Criminal Procedure Code which deals with framing of the charge requires the Magistrate to frame a charge if there is ground for presuming that the accused had committed an offence triable by him. The t learned Magistrate has framed the charge after active application of his mind to the facts of this case and I don't think that there is any grounds for interference in his order. I, therefore, dismiss Criminal Miscellaneous No. 810 of 1967.

As to the other 49 connected petitions i.e. Criminal Miscellaneous 2391 to 2412 and 2420 to 2446 of 1967 no evidence has been recorded in the challans relating to them. The allegations contained in the reports of the police under section 173, Criminal Procedure Code do call for an inquiry by the Court. These allegations cannot be dismissed as incorrect or unsustainable at this stage without there being evidence to support that inference.

It was submitted by the learned counsel for the petitioners that some of the postdated cheques in these cases bore dates of the year 1963 and were never presented for being encashed. The effect of the failure to present these cheques would be examined by the Court concerned after recording evidence. These petitions in my view, therefore, cannot be entertained at this stage and are hereby dismissed.

Petitions dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.