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Criminal Miscellaneous Application No. 148 of 1974, decided on 16th October 1974.
‑---- S. 561‑A‑Quashment of proceedings‑Accused on visiting terms with complainant taking money on loan promising to return within a week‑Complainant not having received money even on repeated requests filing complaint under S: 420‑‑Not even a semblance of cheating appearing in transaction‑ Held, case made out one of loan and triable by civil Court‑Proceedings quashed in circumstances --Penal Code (XLV of 1860), S. 420.
Karar Hussain for Petitioners.
Asstt. A.‑G. for the State.
Respondent No. 2 (absent).
Date of hearing : 16th October 1974.
The circumstances in which this application for quashment has been filed are as follows:‑
1. The petitioners Nos. 1 and 2 are brothers inter se acid the petitioners 'Nos. 3 and 4 are the sons of the petitioner No. 2. All of them belong to Karachi, and according to the complaint filed by the respondent No. 2, they used to be visiting the latter at Sukkur. The complaint, as filed by the respondent No. 2, disclosed that the petitioners were staying with him in the first week of January, 1974, and on the third day of their stay, the peti tioner No. 2 had told him that he had fallen short of Rs. 5,000 which was badly needed by him for the purchases he intended to make. The money was allegedly advanced on the understanding that it will be paid back within a week's time. However, the money was not returned and the respondent No. 2 came to Karachi and made repeated requests for the return of the same. Copious only in the breach, and having realized that the money was not to be had, and that he was cheated in the bargain, he filed a complaint in the Court of the learned S. D. M., Saddar Sukkur which came to be registered. Bailable warrants were issued against all the petitioners for an offence under section 420, P. P. C.
2. The perusal of the complaint clearly shows that the money had been asked for as a loan on the stipulation that it will be paid back in a week's time. On the showing of the respondent No. 2 himself, no trickery or deceit in any conceivable form was involved. It is not necessary to say about the alleged facts whether the money was given or not given. That is not to be considered in the course of quashment proceedings. But assum ing that every word that has been let fall by the respondent No. 2 is correct even then it will be a case of loan which is triable on the civil side. Mani festly there is not even a semblance of any ingredients of cheating. The learned Assistant Advocate‑General very fairly conceded that be could not support the continuance of the proceedings as it will be a sheer abuse of the process of law. The respondent No. 2 has not cared to attend or partake in the proceedings.
3. I might as well mention that the learned Magistrate failed to exer cise proper discretion while admitting the complaint to his file. The pro ceedings are therefore quashed. The surety bonds furnished before the A.D.M. Karachi stand cancelled.
Proceedings quashed.
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