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Criminal Miscellaneous No. 5575 of 1969, decided on 18^th March 1970.

S. 11‑‑Word "person" as defined in S. 11 and as appearing in sections describing offences where impri sonment is mandatory‑Does not include corporate body‑Corporate body or company not indictable for offences which can be committed only by human individuals or for offences punishable with imprison only or Agent authorised to act on behalf of corporate body‑Individually liable for criminal action‑Penal Code (XLV of 1860), Ss. 406 & 420.

State of Maharashtra v. Messrs Syndicates Transport Co. (Pvt.) Ltd. and others A I R 1964 Born. 195 rel.

S. 561‑A‑Quashment of proceeding‑‑Criminal trial‑High Court normally chary to interfere and refrains from interfering where evidence not yet recorded.

The High Court is chary to interfere and normally refrains from interfering where the evidence has not been recorded. The question whether it was a trust, a case of cheating or no penal offence has been made out, can be determined after the evidence is adduced by the parties, and it is for the trial Court to determine all the questions. The extraordinary powers of the High Court under section 561‑A, Cr. P. C. should not be an instrument in the hands of the accused to short circuit the prosecution.

Shamim Ahmad for Petitioner.

Sh. Ziaullah for Respondent.

This is an application by Syed Abdul Qadeer, Managing Director, Safety Sealers (Eastern) Ltd., Karachi, under section 439/561‑A, read with section 526, Cr. P. C. The applicant is being tried by the Sub‑Divisional Magistrate, Murree, on charges under sections 406 and 420, P. P. C.

2. Briefly stated, the case of the complainant is that on the 9th June 1968, at Murree , S. A. Qadeer accused appointed him as the agent of his company for Rawalpindi Zone, for the sale of its manufactured articles. In consequence, the complainant, the same day issued cheque No. A N 343556dated the 9th of June 1968, in favour of Messrs Safety Sealers; Ltd., Karachi, drawn on United Bank Ltd., Jalalpur Jattan, against his Account No. 322. It is alleged that the accused deposited this cheque in the company's account under his signature and that the said amount was debited from the account of the complainant and credited to that of the company of the accused. The case of the complainant further is that the accused did not send him any material for sale. Therefore, the complainant insisted for the refund of the money on which the accused issued cheque No. H/10,737447, dated the 8th of Novem ber 1968, drawn on National Bank of Pakistan, Nicol Road Branch, Karachi, but the same, when presented by the bankers of the complainant was dishonoured.

On the contrary, the petitioner in his petition has stated that Mirza Ishtiaq Hussain approached him at Karachi in the month of June 1968, for the agency of Roofing felts for. Rawalpindi and after the terms and conditions were settled the complainant was required to deposit a sum of Rs. 5,000 as security whereupon, he gave a cheque for Rs. 5,000. It is alleged that before the supply of roofing felts could commence, the complainant wrote a letter dated the 24th of August 1968, to the petitioner requesting for the refund of the security deposit amounting to Rs. 5,000 showing his inability to do felt stocking business, whereupon the petitioner gave a cheque for Rs. 5,000 drawn on the National Bank of Pakistan, Karachi, bet before the cheque could be cashed the other directors of the company were of the view that as the complainant has violated the terms and conditions of the contract the amount of security should be forfeited.

It may be stated here that this petition was put up before Karachi Bench and was laid on 5‑9‑69, before the then learned Chief Justice Mr. Justice Wahiduddin Ahmad, who directed the office at Karachi to transmit this petition to Lahore for disposal, and also stayed the proceedings in the trial Court. After its registration at Lahore, this petition was laid before me on the 12th of January 1970, and the learned counsel for the petitioner stated that the petition may be taken up in the presence of his client whereupon the case was adjourned to the 20th of January 1970. On that day the case was listed before my learned brother M. M. Faruqui, J. and was adjourned for filing copies of the complaint and the statements of the prosecution witnesses recorded by the Magistrate. Meanwhile, the complainant filed Cr. Miss. No. 1372 of 1970, which came up for hearing before the learned Chief Justice, who passed the following order :‑

"Counsel says that the proceedings of a criminal case, which pending at Murree, have been stayed by the order of the previous Chief Justice, which was made at Karachi. It was ordered that the application for quashment be heard at Lahore. This order was made in September 1969. Thereafter on 23‑2‑1970, the application for quashing the proceedings came up before a learned Single Judge of this Court, but could not proceed, because copies of the complaint and statements of the prosecu tion witnesses were required. Counsel says that the accused respondent is interested in delaying the proceedings at Murree, therefore, the present applicant, who is the complainant, has now produced the required certified copies and requests that the application for quashment may be heard at an early date.

2. The application may be fixed for hearing in the end of this month. The complainant, who is the present applicant, may appear, if he so desires."

3. Mr. Shamim Ahmad Mirza, learned counsel for the petitioner stoutly urged that there is no mens rea on the part of the petitioner as he had received the cheque in the name of the company and deposited the same in the account of the Company and later on, as the complainant backed from his commercial commitment to run the agency, the petitioner issued a cheque on behalf of the company in favour of the complainant but as the other directors of the company had objected to the issuance of the cheque the petitioner caused the same to be dishonoured, and in case any penal offence is made out, the company as such should be prosecuted. It was further urged that the complainant had issued the cheque at Karachi and the petitioner deposited the same for its collection at Karachi and later on the cheque for the refund of the said amount was issued at Karachi, therefore, the criminal Court at Murree, had no jurisdiction to try this complaint. Mr. Zia Ullah, learned counsel for the complainant, contended that Murree Court had jurisdiction to try the complaint as the entire deal between the complainant and the accused took place at Chambers Hotel, Murree, where the accused was staying in those days. He argued that "person" in offence where imprison ment is mandatory does not include corporate body as a corporate body or a company cannot be indictable for offences which can be committed only by a human individual or for offences which must be punished with imprisonment. He cited State of Maharashtra v. Messrs Syndicate Transport Co. Ltd. and others (A I R 1964 Bom. 195). Paranjpe, J. in that judgment observed :‑

"Indeed, he accepted such a qualification while conceding that a corporate body cannot be indicated for offences like treason, murder, bigamy, perjury, rape etc., which can be committed only by human individuals or for offences which are compulsorily punishable with imprisonment. It would, therefore, have to be held that despite, the generality of the definition of 'person' given in section 11 of the Indian Penal Code, a corporate body or a company shall not be indictable for offences which can be committed only by a human individual or for offences which must be punished with imprisonment. The offence of cheating under section 420, Indian Penal Code 'shall be punished with imprisonment' and even Mr. Hardas accepted the position that a company cannot be prosecuted for that offence, mandatory involving a punishment of imprisonment. He, therefore, con ceded that the reference will have to be accepted so far as the charge of cheating under section 420, Indian Penal Code was concerned."

The learned Judge further observed :‑

" . . . . a company cannot be indictable for offences like bigamy, perjury, rape etc., which can only be committed by a human individual or for offences punishable with imprisonment or corporeal punishment. Barring these exceptions, a corporate body ought to be indictable for criminal acts or omissions' of its directors, or authorized agents or servants, whether they involve mens rea or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body. The question whether a corporate body should or should not be liable for criminal action resulting from the acts of some individual must depend on the nature of the offence disclosed by the allegations in the complaint or in the charge‑sheet, the relative position of the officer or agent vis‑a‑vis the corporate body and the other relevant acts and circumstances which could show that the corporate body, as such, meant or intended to commit that act . . . ."

4. The above cited judgment clearly repels the argument raised at the Bar by the learned counsel for the petitioner. There fore, I am clear in my mind that the complaint has, been properly instituted against its Managing Director. At this stage of the case on a cursory examination of the facts, it is not a case where it can be said that it would be a mock trial if allowed to proceed or that a subject of the state is being harassed by illegal prosecution. This Court is chary to interfere and normally refrains from interfering where the evidence has not been recorded. The question whether it was a trust, a case of cheating or no penal offence has been made out, can be determined after the evidence is adduced by the parties, and it is for the trial Court to determine all these questions. It has been time and again held by this Court that the extraordinary powers of this Court under section 561‑A, Cr. P. C. should not be an instrument in the hands of the accused to short circuit the prosecution.

5. The result is that I find no substance, ire tads petition so far as the prayer for quashment is concerned. As to the prayer for the transfer of the case, counsel for both the parties agree that the case may be transferred to any Court of competent jurisdiction at Lahore. In consequence, I withdraw the case from the file of the S. D. M., Murree and transfer it to the file of the Assistant Commissioner, Lahore, with a direction that he should either try the case himself or transfer the same to some other Court of competent jurisdiction for trial and disposal in accordance with law. The petition is disposed of accordingly.

Order accordingly.

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