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Criminal Miscellaneous Application No. 182 of 1985, decided on 26th November, 1986.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 420, 406 & 34‑‑Quashing of proceedings‑‑Private complaint‑‑Allegations set out in complaint smacking of mala fides‑‑No First Information Report was lodged against accused and complaint was filed with delay of one and a half months which was not explained‑‑Transaction appearing to be purely of civil nature‑‑Proceedings quashed.

1977 P Cr. L J 135; Muhammad Usman and others v. The State and others 1976 P Cr. L J 153; 1983 P Cr. L J 1585 and Aba Umar Shah v. Abdur Rehman Shah and others 1981 P Cr. L J 455 ref.

Ghulam Haider Memon for Petitioners.

Ahmed Ali Memon for the State.

Date of hearing: 26th November, 1986.

This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending in the Court of Civil Judge and F.C.M., Naushero Feroze initiated against the applicants on the private complaint of respondent No. 2, filed under section 420/406/34, P.P.C. on 8‑12‑1984. It was alleged that two months back the petitioners Nos. 2 and 3 who are known to him and on visiting terms came and told him that they have opened a cattleshed and started selling milk in the city of Hyderabad and wanted to purchase buffaloes for their business. They requested the complainant to help them in purchasing buffaloes. They chose to purchase 2 black buffaloes with young kids belonging to the complainant and agreed to purchase them for Rs.16,000. The applicants Nos. 2 and 3 paid Rs.1,000 to the complainant and promised to pay the remaining amount within one week to which the complainant agreed. They had further assured that they would come next week and purchase more buffaloes. The complainant cited Muhammad and Dhani Bux as witnesses before whom the transaction was completed. The accused did not come the next week when complainant went to him with Muhammad to Hyderabad. The accused requested for more time and after one week the complainant and Muhammad again went to the accused. All the 3 petitioners talked to each other and told him that in fact they were indebted to Rs.15,000 and after obtaining the buffaloes they have sold them and paid the debt and that they had no intention to pay the money from the very beginning. They threatened that if they do not go back they will get the complainant and his witnesses arrested. He then came back and after 1‑1/2 months filed the complaint.

The learned trial Court after recording the statement of the complainant and one witness Dhani Bux issued summons which was served on the petitioner No. 1 on 25‑3‑1985 when the petitioners filed this petition and obtained order for stay of the proceedings.

Mr. Ghulam Haider Memon the learned counsel for the petitioner has contended that the transaction was of a civil nature and no offence as alleged by the complainant has been made out. He further contended that this action has been initiated due to enmity with Syed Zaman Shah who is also a resident of Naushero Feroze and who had lodged report against the petitioners Nos. 2 and 3 under sections 307 and 326, P.P.C. which is pending and it was at his instigation that this complaint has been filed merely to harass and humiliate the petitioners.

A perusal of the complaint will show that it relates to a transaction relating to sale of buffaloes. Admittedly there is no written document to prove the contract between the parties. The allegations in the complaint and the statement of complainant and his witness Dhani Bux speak of a transaction relating to sale of buffalows in he sum of Rs.16,000 out of which only Rs.1,000 was paid and the balance Rs.15,000 was to be paid afterwards. From the very nature and substance of these allegations it seems to be a transaction of a civil nature. However, the complainant has also alleged that on his last visit all the petitioners had talked to each other and told him that they had no intention to pay the money from the very beginning and the transaction was brought about‑to obtain buffaloes and sell them to meet their requirements. This fact has been introduced by the complainant merely to incriminate the petitioners and to charge them with criminal liability. The learned counsel has referred to 1977 P Cr. L J 135 where a transaction for sale of buffaloes was made and the accused refused to pay. It was held that it was a civil liability for rendition of account and suit for recovery of money was proper remedy and the criminal proceedings were quashed. Reference was made to Muhammad Usman and another v. The State and others 1976 P Cr. L J 153 in which complaint was made under section 420, P.P.C. and mere refusal to pay the amount claimed was held not to constitute offence of cheating and the proceedings were quashed. The learned counsel for the petitioner also referred to 1983 P Cr. L J 1885 in which the complaint and the statements of the prosecution witnesses did not disclose commission of offence of cheating and misappropriation. In this case also the accused was charged of non‑payment of price of buffaloes and the proceedings were quashed. Lastly the counsel has referred to Aba Umar Shah v. Abdur Rehman Shah and others 1981 P Cr. L J 455 in which the parties had dealing of commercial nature in selling and purchasing of cattle in cash and credit and in the facts and circumstances of the case the matter was held to be of a civil nature and as offences under sections 420 and 406, P.P.C. were not made out the proceedings were quashed.

If on the allegation of the respondent No. 2 it is established that there was a transaction for purchase of buffaloes then liability of the petitioners Nos. 2 and 3 is to pay the balance amount claimed by the complainant. It is noteworthy that in the entire complaint the transaction is alleged to have been made out between petitioners Nos. 2 and 3. The petitioner No. 1 does not feature any where in the transaction but on the last stage all the petitioners are alleged to have stated that they had purchased with no intention to pay the amount. This allegation set out in the complaint smells of mala fides. The respondent No. 2 did not lodge any F.I.R. against the petitioners and filed the complaint after about 1‑1/2 months. The delay has not been explained. In the facts and circumstances of the case as the transaction seems to be purely of a civil nature I allow the application and quash the proceedings of criminal case under section 420, P.P.C. filed by respondent No. 2 against the petitioners before the Civil Judge and First Class Magistrate, Naushero Feroze. The surety is discharged and the bond executed by the petitioner No. 1 is cancelled.

M.Y.H./A‑23/K Proceedings quashed.

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