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Criminal Miscellaneous Application No. 1037 of 1977, heard on 24th April 1979.

Criminal Procedure Code (V of 1898)----

----S. 561-A read with Penal Code (XLV of 1860), S. 406-Quashment of proceedings-Criminal breach -of trust-Purchase of disputed tea lot not materializing and consideration money returned-Tea-stock neither belonging to respondent nor even entrusted to petitioner in any manner-No allegation that petitioner by himself or with connivance of other co-accused dishonestly misappropriated or converted tea-stock in question to his own use--Question of breach of trust, held, misconceived, in circumstances.

S. A. Sarwana for Applicant.

Muhammad Ali Shaikh for Respondent No. 2.

Abbas Ahmad for Respondents Nos. 3 and 4.

R. A. Qureshi for A.-G. for the State.

Date of hearing : 24th April 1979.

The applicant seeks quashment of the proceedings instituted against him and respondents Nos. 3 and 4 on a direct complaint under sections 408 and 409, P. P. C., filed by respondent No. 2. The case is now pending disposal in the Court of the Illaqa Magistrate, Preedy A.M., Karachi.

2. The brief facts of the case are that the applicant is the Assistant Manager, Alliance Assurance Company Limited, having its office in Spencers Building, I. I. Chundrigar Road, Karachi. Respondent No. 3 is the Surveyor and respondent No. 4 is the Manager Secretary of Messrs Liptons (Pak.) Ltd. whereas, respondent No. 2 is the proprietor of Alim & Co.

3. According to the complaint, the applicant had approached respondent No. 3, as the Surveyor, who had approached respondent No. 21 complainant, through one Saleem Sattar with an offer for the purchase of 1,00,(.00 Kgs. of water‑damaged tea‑lot, belonging to Liptous Co. under assurance of the firm of the applicant. Consequently the respondent No. 2 was taken by respondent No. 3 to the godown of Messrs Liptons (Pak.) Ltd. on West Wharf Road, Karachi and was shown the necessary documents. The respondent N. 2 inspected the damaged Tea stock, and offered to purchase the entire lot, at the rate of Rs. 7.50 Kg.

4. In the complaint it is further alleged, that the respondent No. 2 paid the amount, in the manner, detailed below, in favour of the applicant:

Rs.

(i) on 10‑8‑1977 in cash 20,000

(ii) on 11‑8-1977 through pay order 70,000

(iii) on 16‑8‑1977 through pay order 6.30,000

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Rs. 7,20,000

The Tea‑stock was accordingly stated to have been kept as a trust property with the applicant and respondent No. 3.

5. On 18‑8‑1977, when the respondent No. 2 went to' collect the tea stock, it was revealed that the tea was dishonestly disposed of to respondent No. 4, who had removed it to his godown.

6. After recording the statements of respondent No. 2, and the witness produced by him, during P. E., the learned Magistrate took cognizance of the offence under section 406, P. P. C. and issued B‑. W. S. in the sum of Rs. 10,000 against the applicant and the respondents Nos. 3 and a.

7. I have heard the learned counsels Messrs S. A. Sarwana for tire applicant, Abbas Ahmad for respondents Nos. 3 and 4, Muhammad All Shaikh for respondent No. 2 and R. A. Qureshi for the State. With their assistance, I have perused the Record and proceedings of the case, as well.

8. It is admitted position 'that before filing the criminal complaint, the respondent No. 2, had filed a Civil Suit No. 1287,177 )n 20‑8‑1977, in the Court of XXII, Civil Judge Karachi, for declaration and injunction. The Defendancs shown in the Civil Suit were:

(i) Messrs Alliance Assurance Co. Ltd.

(ii) Messrs Mustafa Haider & Co.

(iii) Messrs Liptons (Pakistan) Ltd.

On perusal of the plaint (Annexure A) it appears that all tire allegations were directed against respondent No. 3 only. It was admitted therein, that the respondent No. 3 was to be paid the commission of .50 paisa, which undeniably was detrimental to the interests of the company of the applicant (Alliance Assurance Co.). it is further ;admitted in the plaint that the respondent No. 3 aud on 17‑8‑1977 returned the pay order of Rs. 6,30,000 to the respondent No. 2. Nowhere, in the plaint or otherwise, it is shown that there was any written contract between the parties, particularly, the applicant and the respondent No. 2, in respect of the sale of the Tea stock. 1 he affidavit sworn by the respondent No. 2, (Annexure 'F') and the two letters filed with the plaint (Aunexures G & H) the respondent No. 2, slid not state anything, what was subsequently alleged in the criminal complaint. On the contrary, in his another affidavit (Annexture K) the respondent No. 2, had categorically stated that the applicant had nothing to do and was not in the picture, in the deal.

9. Finally, the Civil Suit was disposed of by the order dated 4‑9‑1977, (Annexure M), as being incompetent, with a direction to be presented in proper Court, as the value of the property, involved was shown to be Rs. 70,00,000 (Seven lacs). The Tea‑lot, under the circumstances, was, there after, sold by the applicant to respondent No. 4. Even in appeal, against the order dated 4‑9‑1 )77, the respondent No. 2, did not succeed. Thereafter the criminal complaint (Annexure 'A') was filed.

10. From the facts narrated above and as a result of the arguments, of the learned counsels, it is apparent that no criminal offence is indicated against the applicant. In his plaint, it is admitted by respondent No. 2, that the pay order fur Rs. 6,30,000 was given back to him by respondent No. 3. Accordingly, the purchase of the Tea‑lot by respondent No. 2 did not materialise. The Tea‑lot lay in the godown of Messrs Liptons (Pakistan) Ltd. at West Wharf, where it previously, was. The Tea‑stock did not belong to respondent No. 2, nor was it ever entrusted to the applicant in any manner. The question of the breach of trust is misconceived. There is no allegation, anywhere made, that the applicant by himself or with connivance with any other co‑accused, had dishonestly misappropriated or converted to his own use, the Tea‑stock in question.

11. In the result, the proceedings against the applicant in the Magisterial Court, are clearly an abuse of the process of the Court, and are hereby

quashed.

Proceedings quashed.

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