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Criminal Miscellaneous Application No. 445 of 1979; heard on 30^th October, 1979.

(a) Criminal Procedure Code (V of 1998)‑---

--‑‑S. 561‑A‑‑Quashment of criminal proceedings‑No misappropriation or entrustment established‑Case appearing purely of civil nature--- Held : No justification of filing complaint under S. 406, P. P. C. proceedings quashed‑P6nal Code (XLV of 1860), S. 406. [p. 438).4 (b) Criminal Procedure Code (V of 18") ‑‑.‑ S. 561‑A‑‑Quashment of criminal proceedings‑Complaint file Court at K in respect of dispute arising at L‑‑Complaint, held, aimed at harassment of applicants and therefore an abuse of proves of Court‑Proceedings quashed‑Penal Code (XLV of 1860), S. 406.‑ [Abuse of process of Court].

Ch. Iftikhar Ahmed for Applicants.

Munawar Malik for Respondent.

Wasi Ahmed for the State.

Date of hearing: 30^th October 1979.

This is an application for quashment of private complaint filed by Messrs Siddique & Saeed Limited on 24‑4‑1978 against applicants, Sher Afghan and Muhammad Hanif, pending in the Court of Assistant Commissioner & S. D. M., Nazimabad, Karachi. The process bad been issued under section 406, P. P. C. against the applicants and the statement of the complainant has been recorded on 11‑10‑1978, and he was cross‑examined at length by applicants' counsel. The applicants had made an application under section 249‑A, Cr. P. C. for acquittal but the same was rejected by the S. D. M. on 20th March, 1979. The same order had also disposed of another application of the applicants made under section 1 81(2), Cr. P. C. where they had challenged the jurisdiction of High Court. The complainant had alleged that it was an exporter of carpets and the accused were partners of Messrs Nadim Traders, who manufacture carpets at Kasoor, Lahore. The complainants have had an office at Lahore, where the accused approached them and told Mian Anwar of complainant that the accused manufacture carpets and on that pretext entered into an agreement and took Rs. 25,000 as advance, and thereafter, on same pretext they took another Rs. 50,000 plus carpets yarn worth over a lac of rupees from the Lahore office of complainant, which was acknowledged by the accused on 20‑5‑1977 in the following terms :‑

The complainant had admitted in the complaint that the accused persons started selling same carpets to create confidence. The complaint continued that in May 1977, the accused come to Karachi and persuaded Mr. Saeed to advance more money (again on pretext of supply of carpets) the accused took Rs. 30,000 and these advances amounted to Rs. 1,05,000 plus materials in shape of carpets yarn were entrusted to them for the purpose of manufac turing carpets for the complainant company. The agreement acknowledging all these facts were entered into. The complainant alleged that the accused had written the letter on 5‑9‑1977 to the complainant and that on 12‑1‑1978, the complainant learnt that the accused misappropriated and embezzled their money Rs. 1,05,000 and materials worth Rs. 78,450 and they therefore, sent telegraphic notice to the accused and then a legal notice on 14th January, 1978, but the accused did not even reply. Finally, the complaint alleged that accused have dishonestly, fraudulently and by misrepresentation of facts obtained huge amount of materials in the shape of carpets yarn from the complainant and misappropriated and converted same for their own use, which was entrusted to them for the purpose of manufacturing and supplying carpets to the complainant.

I heard Mr. Choudhry Iftikhar Ahmed for the applicant, Mr. Munawar Malik for the complainant and Mr. Wasi Ahmed for the State. Mr. Iftikhar contended that it was a matter of civil liabilities, which have been, converted into the criminal case and complaint had been filed at Karachi to harass the applicant.. He read portions of the agreement dated 31‑5‑ 1977, which has been produced by the applicants, through ;P. W. I Ghulam Nabi who filed the complaint. Mr. Iftikhar has shown that the carpets yarn was sold to the applicants and the sum of Rs. 1,05,000 was given as a loan to them. It was an agreement simply for the manufacture of the carpets by the applicants, which were to be sold to the complainant at different rates and the rates for the sale of the carpets were to be revised at the end of six months and the rates agreed on 31‑5‑1977 were to be revised in January, 1971, but the complainant wanted to obtain carpets at the old rates. He also showed that the agreement contained a clause for the payment of 13 per cent interest to the complainant if amount of loan was not paid in time by the ,applicants to the complainant. The said agreement also contained a provision of arbitration in case of dispute. Mr. Iftikhar showed the letter of 26th April 1979, written to the accused applicants by the complainant whereby the complainant had appointed Mr. Muhammad Shafiq Siddiqi as their arbitrator and had required applicants accused to nominate their arbitrator. Mr. Iftikhar argued that in view of the admission of the complain ant that some carpets had been supplied by the applicants to the complainant, the question of any misrepresentation or pretext or fraud was completely out of question. Mr. Munawar on the other hand contended that the letter of applicants dated 20‑5‑1977 was part and parcel of the agreement dated 31‑5‑1977, and therefore, the two should be read together. He showed that in the letter of 20‑5‑1977, the applicants have admitted to have received the yarn as an entrustment. But, I find that, the same latter also mentions that yarn has been received as an advance, therefore, the position is that the question of entrustment is not fully established even from this letter of the applicants dated 20‑5 '.977. The entrustment of the yarn is not fully established as it is also shown as an advance towards future supply of carpets in a different portion of the same letter. The agreement of 31‑5‑1977 clearly shows the same Rs. 1,05,000 as a loan, and therefore, the same could not be said to have been entrusted, and hence, there was no question of entrustment having been made in that respect. Moreover, there is a provision of payment of 13 % interest by the applicants to the complainant, if loan was not paid in time and that shows that the property in the amount advanced was of the applicants and the amount of money was not lying in trust with them. The carpets yarn, which had been supplied by the complainant to the applicants was also to be paid for out of the sale of carpets which was to be manufactured by the applicants and to be sold to the complainant. It was, therefore, not a case of mere entrustment of carpets yarn, but it seems to be a sale on credit of carpets yarn by the complainant to the applicants. It is admitted position that the applicants had 140 carpets looms and the complainants were only to purchase the products of 60 looms in future, therefore, the applicants were also to produce carpets of their own on 80 carpets looms and they could, therefore, market the same. There is no provision in the agreement that the applicants will sell their carpet only to the complainants, and there is no condition to the above effect that any carpets which are manufactured with the carpet yarn of the complainant would be sold only to the complainant and not to any other persons.

In these circumstances, it is difficult to understand as to how applicants could be alleged to have misappropriated, either, the money or the carpets or the carpet yarn. Moreover, since, the complainant had stated in the complaint that some carpets were supplied by the applicants to the complainant, therefore, it remains merely a matter of account taking as to what was the value of the carpets supplied and what was the balance due to the complainant. The complainant has even failed to specify 'the value and number of carpets supplied by the applicants, which does not seem to be a bona fide omission. In any case, the failure to supply the required number of carpets is a matter of civil nature more particularly so, when the rates of carpets after 1st January, 1978 were still to be settled between the parties.

I am, therefore, convinced that there was no entrustment established in this case and the dispute was purely of civil nature, and there was hardly any justification for filing the complaint under section 406, P. P. C. Moreover, the complainant had a branch office at Lahore, and the applicants were also of Lahore and misappropriation, if any could have been made at Lahore, and therefore, the complaint at Lahore would have been more appropriated and just, but the complaint at Karachi obviously seems to have been filed in order to cause embarrassment to the applicants by making them travel from Lahore to Karachi and incur expenses.

In these circumstances, I am of the view that the complaint at Karachi by the respondent was aimed at harassment of the applicants and was therefore, the abuse of the process of the Court and is hereby quashed. The are the reasons for the order passed by me on 13‑10‑1979.

Complaint quashed.

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