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Criminal Miscellaneous Application No. 308 of 1973, heard on 19th September 1973.

-- S. 561-A-Inherent powers, exercise of Test. The test laid down for interference in the pending criminal proceedings is that if the proceedings are allowed to continue they should result in grave miscarriage of justice and there should exist no other provision of law by which the aggrieved party could seek relief. Inherent jurisdiction of the High Court should not normally be invoked where another remedy is available. These powers ought to be exercised only to prevent abuse of the process of Court and in order to advance the interests of justice. High Court may quash the criminal proceedings started on a complaint which does not contain any definite accusation or where the accusation made, does not disclose commission of any criminal offence, otherwise the quashment of proceedings at an earlier stage when no evidence is recorded, would give an impression of stiffing of criminal proceedings. But where the allegations made in the complaint do disclose an offence. It is for the trial Court to weigh the evidence and to determine whether the allegations are true or false. Proceedings could not be quashed simply for the reason that the accused considered that the allegations were false and fantastic. The test laid down is that the allegations in the complaint taken at their face value, and accepted in their entirety, should not constitute an offence as alleged. In such case no question of appreciating the evidence arises as it is a matter merely of looking at the complaint and deciding whether the offence alleged has been disclosed or not, whether proceeding with the trial would amount to hardship. High Court - could also interfere if all the allegations in the complaint, disclosed the matter to be purely of civil nature and where an attempt had been made to circumvent the law and avoid payment of court-fees by making out a criminal offence.

-- S. 406-Criminal breach of trust-Complaint disclosing prima facie criminal offence-Mere fact of civil remedy also being open, would not oust jurisdiction of criminal Court.

------S. 406-Criminal breach of trust-Money or property given for specific purpose-Utilization of same for some other purpose or in different manner, held, amounts to criminal breach of trust.

-- Ss. 561-A, 205 & 540-A-Exemption from personal attendance-High Court empowered to exercise powers beyond those conferred by sections 205 & 540-A-Accused persons (including one lady) required to come from L to K after spending huge amount on fares and leaving their business-Accused granted exemption from personal appearance and permitted to appear through duly authorised counsel except at stage when Magistrate considers their presence necessary.

A I R 1949 Nag. 334 and A I R 1957 Nag. 101 ref.

S. M. A. Mahmood for Applicants.

G. M. Shah for Respondent No. 1.

Nemo for the State.

Dates of hearing : 18th and 19th September, 1973.

This is an application under section 561-A, Cr. P. C. for quashing the criminal proceedings started on a complaint filed by Esoof Hashim Bharoocha against the petitioners for an offence under section 420/406/109/120-B, P. P. C.

The facts leading to this petition are briefly as under:

Petitioner No. 1 Latif Ansari came into contact with Esoof Hashim Bharoocha and married his sister petitioner No. 3 Farida Ansari. Thereafter petitioner No. 1 who had left the firm of Azhar Latif Ansari an Ice Cream manufacturing concern, induced -the respondent to join him and his associates in floating a private limited company. The respondent agreed and contribu ted Rs. 1,00,000 on the understanding that this amount would be deposited in Australasia Bank Limited in the account of the company and he would be authorised to deal with the said account on behalf of the company. The account was opened in the name of the company in East Pakistan, but later ors petitioner No. 1 asked the respondent to send an amount of Rs. 1,00,C00 to him at Karachi for depositing it there. The respondent sent a draft but it was actually deposited by petitioner No. 1 and petitioner No. 2 in their personal accounts. The petitioners also asked the respondent to send them the cheque book etc. of the Australasia Bank Limited and his share certificates as they were required for auditing. The amount of Rs. 1,00,000 was however misappropriated and the respondent was ultimately excluded from the said concern.

It is also the case of the respondent in his complaint that he had been induced to send a consignment of Haldvi valued at Rs. 11,000 and another consignment of spare parts valued at Rs. 45,000 to accused No. 1 on the understanding that the profit would be paid to the wife of the respondent in Karachi. The sale proceedings of these consignments were however misappropriated and only Rs. 2,000 were given to the wile of the respondent.

Meanwhile in May, 1970 the respondent was induced by the petitioner to advance another Rs. 1,00,000 in the name of Mrs. Farida Ansari and they executed a receipt that it was an entrustment and also guaranteed in writing the repayment of this amount by 31st December, 1972. That this sum of Rs. 1,00,000 was also misappropriated, and thereafter the respondent was excluded from the company. Later on the petitioners by threats and black mailing got certain letters signed by the respondent on the representation that he would be paid back his money but after getting the documents they denied their liability to make any payment to him.

That the conduct of the petitioners all along had been dishonest and they had cheated the respondent and misappropriated large sums of money belonging to him.

The case of the petitioners as gathered from the petition filed by them and the arguments of the learned Advocate appearing on their behalf is that the respondent had been given share certificates worth of Rs. 50,000 which he had returned to the company. That the respondent by way of practical joke had sent draft for 1,00,00 to his sister Farida Ansari and the petitioners had nothing to do with this advance and that in any case this was a loan which had become time-barred and they were not required to repay time-barred debt.

It has been argued by Mr. S. M. A. Mahmood on behalf of the petitioners that the complaint does not disclose any criminal offence; that the transactions took place in East Pakistan in the year 1970; that four different transactions had been joined together in one complaint without mentioning the dates of occurrence and the places where the transactions took place. That in any case these transactions related to the undertakings of a limited company and the matter was purely of a civil nature. That the filing of criminal proceedings amounted to an abuse of the process of Court. the learned Advocate has accordingly urged that the criminal proceedings before IV Additional City Magistrate, Karachi be quashed. It has on the other hand been argued by Mr. G. M. Shah on behalf of the respondent that the complainant prima facie discloses commission of certain offences and the High Court should allow the proceedings to be completed and not interfere at this interlocutory stage when no evidence has yet been recorded.

That even if the transactions took place in East Pakistan their consequ ences have ensued at Karachi which was registered office of this private limited company, and that the question of misjoinder could be considered at the stage of framing of charge. Mr. G. M. Shah has then pointed out that the petitioners had acted dishonestly from the very start they had taken Rs. 2,00,000 from the respondent but they themselves had not contributed a single pie for running the business of the company. After realizing this amount they had excluded the respondent from the said concern and denied any liability even to pay back his amount. That there was thus a prima facie case made out against the petitioners and it was open to them to rebut these allegations at the trial.

The High Court's power to be exercised under section 561-A, Cr. P. C. is in its nature, extraordinary. The test laid down for interference in the pending criminal proceedings is that if the proceedings are allowed to continue they should result in grave miscarriage of justice and there should exist no other provision of law by which the aggrieved party could seek relief. Inherent jurisdiction of the High Court should not normally be invoked where another remedy is available. These powers ought to be exercised only to prevent abuse of the process of Court and in order to advance the interests of justice. Thus the High Court may quash the criminal proceedings started on a complaint which does not contain any definite accusation or where the accusation made, does not disclose commission of any criminal offence; otherwise the quashment of proceedings at an earlier stage when no evidence is recorded, would give an impression of stifling of criminal proceedings. But where the allegations made in the complaint do disclose an offence, it is for the trial Court to weigh the evidence and to determine whether the allegations are true or false. Proceedings could not be quashed simply for the reason that the petitioners considered that the allegations were false and fantastic. The test laid down is that the allegation in the complaint taken at their face value, and accepted in their entirety, should not constitute an offence as alleged. In such case no question of appreciating the evidence arises as it is a matter merely of looking at the complaint and deciding whether the offence alleged has been disclosed or not, whether proceeding with the trial would amount to hard ship This Court could also interfere if all the allegations in the complaint, disclosed the matter to be purely of civil nature and where an attempt had been made to circumvent the law and avoid payment of court-fees by making out a criminal offence.

Applying these tests to the facts of the present case, it cannot be said that the complaint of the respondent on the face of it, does not disclose a criminal offence. If an offence is made out under section 406, the mere fact that a civil remedy is also open to the complainant, would not oust the jurisdiction of the criminal Court. There is no legal bar to the prosecution of the directors of a company for their acts or omissions constituting a criminal offence. Money or property given for specific purpose when utilized for some other purpose or in different manner may amount to criminal breach of trust. The respondent has alleged dishonest intention against the petitioners and it is only after the admission of evidence oral or documentary of the parties that the Court can come to a definite conclusion whether any criminal offence has been made out or not. In these circumstances this would not be a fit case for interference at this interlocutory stage.

The learned Advocate on behalf of the petitioners has prayed for grant of exemption to the accused as one of them is a lady and the remaining accused will have to leave their business at Lahore and attend the Court on each hearing, after spending huge sums of money on fares. The High Court has inherent powers under section 561-A to exempt an accused from appear ing in Court beyond those contained under sections 205 and 540-A, Cr. P. C. as held in A I R 1949 Nag. 334 and A I R 1957 Nag. 101. The petitioners are accordingly granted exemption from personal appearance at the trial and are permitted to appear through their duly authorised counsel except at the stage when Magistrate considers their presence to be necessary. The stay orders on miscellaneous application in these proceedings stand vacated. The petition is otherwise dismissed.

Petition dismissed.

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