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Criminal Miscellaneous No. 82 of 1987, decided on 5th flay, 1987.

---S.561-A--Penal Code (XLV of 1860), Ss. 406 & 420--Criminal proceedings, quashing of--Business dealings existing between parties--Complainant standing guarantor for accused in obtaining loan from Bank--Accused failing to repay loan--Bank obtaining decree against accused and complainant--Apprehending execution of decree complainant lodging F.I.R. against accused--No case of cheating or criminal breach of trust, held, was made out and proceedings pending before Trial Court were quashed in circumstances.

Izhar Haider Rizvi for Applicant.

Suleman Habibullah for Respondent.

This is an application a/s 561-A Cr. P. C. for quashment of proceedings pending against the applicant a/s 420/406 PPC, before the learned A.C.M. Court No. 2, Karachi, West.

2. The brief facts giving rise to the present application are that in July 1981 the applicant took loan of Rs. 42,000 from the National Bank of Pakistan, Karachi, and the respondent No. 1 stood guarantor for him, and she executed mortgage deed in respect of her immovable property in favour of the Bank which was duly registered. In August 1984 the Bank filed suit for recovery of Rs. 57,628.07 against the applicant and the respondent No. 1, which was contested by the respondent No. 1 but the same was decreed on 27th May 1985, against the applicant and respondent No. 1.

That on 30-7-1985 the respondent No. 1 filed a report under section 420/406 PPC at Police Station New Karachi, in which it was alleged that she was running a machine on which she used to prepare plastic toys in her house, and she used to purchase raw material from the accused /applicant who was doing business, and in this way they started business dealings. During that period her husband Muhammad Hanif met with an accident, and therefore the machine was stopped due to financial difficulties. Whatever she had it was spent over medical treatment of her husband. During those days accused came to inquire about health of her husband at her house. He inquired from her about the reasons of closing the business, on which she told him that she had closed the business because of her poor financial position. The accused informed her that his sister-in-law and her husband Sabir Ali were employed in National 'Bank of Pakistan, hence he is in a position to arrange loan of Rs. 15,000/- (Rupees Fifteen Thousand only), from National Bank of Pakistan, after mortgaging her house, and in that way she will be able to continue the business. Accused further told her to accompany him to the National Bank alongwith her documents. It was further alleged that she handed over the original documents of lease etc. to the accused for mortgaging, and for taking loan from the bank. She went alongwith the accused to the bank and put her right thumb-impression on different Bank forms for getting the loan sanctioned. The accused assured her that she will get the amount of loan of Rs. 15,000 within two or three days. She was further asked to arrange for about Rs. 1,500 or Rs. 1,600 for stamps etc. She arranged Rs. 1,600 from one of her neighbourer and handed over the same to the accused. The accused asked her to collect the amount of loan after 8/10 days from the bank, during this period the accused asked her to remain silent for her work in the bank, otherwise the grant of loan will be disturbed. As per promise of accused she went to the accused's house where he was not available, and his wife informed her that accused has left for Saudi Arabia. She asked her about the address of the accused /applicant but the wife of the accused disclosed that she had none. In this way she waited for accused's arrival from Saudi Arabia. After two and half years the accused returned from Saudi Arabia, but he did not meet her, as he was either at Islamabad or at Hyderabad as stated by his wife.

3. The complainant has supported the contents of her F.I.R. in Court and has further deposed that she used to visit accused regularly but he went on keeping her on false hopes, and ultimately gave her a cheque for Rs. 247,000/ (Rupees twenty-seven thousand) which was produced by her before the bank for encashment but the same was dishonoured. She has produced cheque. Memorandum of Bank and two letters received from the accused as Exhs. 3-Q to 3-T. Since the accused did not pay her the amount, therefore she was constrained to file F. I. R. which has been produced as Exh. 3-U. -In cross -examination she has stated that;

"it is correct to suggest that I want to have back my mortgage deed and other -title deeds of my house deposited by the accused in the Bank It is correct that on 10-8-1981 accused Abrar had brought me before the Sub-Registrar T-Division Karachi for execution of mortgage deed. I had put my thumb impression on the deed."

She has been shown the mortgage deed and she has admitted that it bears *her thumb-impression and the same has been produced as Exh.3-V. She has further admitted that it is correct to suggest that I want that accused Abrar to credit the loan in the bank and mortgage deed be returned to me. I had not taken loan from the bank, but it was accused who had taken it. She has further admitted in cross -examination that she did not give any written application to the Bank about the above facts.

4. From the perusal of the F.I.R. and evidence of complainant it is clear that there were business dealings between the parties and that because of these connections, the complainant stood guarantor for the applicant but when he failed to re-pay the loan .to the Bank, and the suit was decreed against her as well as against the applicant, she apprehended that the decree might be executed against her, therefore she filed the present report. On a question from this Court the leaned counsel appearing for the respondent admitted that he has moved an application under section 12(2), CPC before the learned Civil Judge for setting aside the decree.

From the above discussion it is clear that no case was made out for cheating or criminal breach of trust and consequently the above quashment application is allowed and the proceedings pending against the applicant under section 420/406 P.P.C. before the learned A.C.M. Court No. 11 Karachi (West) are hereby quashed.

5. However, in view of the peculiar circumstances of the case, and the fact that the respondent is a poor illiterate lady I expect that the Bank will first execute the Decree against applicant Abrar and his property, and thereafter if any part of the decretal amount remained unpaid, the same may be recovered from the respondent subject to her right and claim against the applicant.

I had decided the above matter on 5-5-1987 by short order, these are the reasons for the same.

S.A./A-194/K Proceedings quashed.

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