1992 PLP 993 (MLD)

The applicant by filing this application under section 561‑A, Cr.P.C., has called in question the order dated 13‑10‑1990, passed by the learned Addl. City Magistrate, Kotri, taking cognizance of a private complaint filed by the respondent No.2 against the applicant, alleging offences under sections 420, 406 and 506, P.P.C.

2. Briefly stated, the facts of the case are that, the respondent No.2 filed a private complaint before the learned A.C.M., Kotri, alleging that he was a Zamindar and was a resident of Thano Bola Khan, whereas the applicant was a businessman doing business at Hyderabad and Karachi. According to allegations, the applicant was dealing in Suzuki Tractor Agency and also was owner of a re‑rolling Mill and had ship‑breaking business at Gaddani. The applicant being a friend of the respondent No.2 and P.Ws. Amir Ali of Amir Complex, Kotri, approached and persuaded the applicant to invest some money in his business promising 2% profit per month. The said proposal was accepted by the respondent No.2 and he invested rupees ten lacs in the applicant's business, the said amount being paid to the applicant in presence of P.Ws. Amir Ali, Amin Muhammad and Haji Shabbir Ahmed. The receipt of this amount was also acknowledged by the applicant who executed a promissory‑note dated 5‑11‑1985 in favour of respondent No.2. However, since then the applicant neither paid any profit to the respondent nor returned the principal amount but always kept the complainant on false hopes and promises. Subsequently, in 1990, the applicant met the respondent No.2 at Kotri and once again acknowledged the receipt of the aforesaid amount of rupees ten lacs by him from the said respondent. Again sometime later the applicant acknowledged in presence of the said witnesses and there was also an exchange of harsh words between the applicant and respondent No.2 and the applicant lost his temper and threatened the respondent No.2 with unpleasant consequences. Thereafter the respondent No.2 came to know that the applicant had wound up his business and was planning to leave Pakistan and permanently settle in U.S.A. and consequently the aforesaid complaint was filed by the respondent No.2 before the learned A.C.M. Kotri.

3. After the complaint was filed before the learned A.C.M., he after recording the statements of the complainant and two of his witnesses, namely Amir Ali and Haji Shabbir Ahmed, found a prima facie case against the applicant under sections 420, 406 and 506, P.P.C. and ordered issuance of process against the applicant.

4. It was under such circumstances that the present application under section 561‑A, Cr.P.C. has been filed before this Court by the applicant. It may be pointed out, that so far as the allegations in regard to the alleged offence of cheating under section 420, P.P.C, are concerned, "Cheating" has been defined by section 415, P.P.C. as follows:‑ "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the. whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

5. As would appear from the above definition, fraudulent deception or inducement are essential ingredients of the offence of cheating. In the complaint, no doubt, the respondent No.2 has alleged that he was persuaded by the applicant to invest in the business but the facts disclosed in the complaint nowhere indicate an element of fraudulent deception or inducement. The case purely appears to be that of a breach of a promise. There is no allegation that the amount of rupees ten lacs paid by the respondent No.2 to the applicant was not invested by him in his business, nor there is any indication that from the very inception the amount was received by the applicant with any fraudulent intention. It is pertinent to point out that before taking cognizance of the offence alleged in the private complaint the learned A.C.M. was duty bound to apply his mind to the allegations made in the complaint and to be satisfied first whether the same disclosed a prima facie case against the applicant under any of the alleged provisions of the P.P.C. However, as it has been just pointed out, nothing can be spelt out from the complaint to make out a prima facie case against the applicant under section 420, P.P.C. Similarly, the complaint also fails to disclose an offence under section 406, P.P.C. Criminal breach of trust, defined by section 405, P.P.C. is as follows:‑ "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property; or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

6. As is evident from the aforesaid definition, dishonest misappropriation of any property by accused or conversion of the same to his own use are some of the necessary ingredients of an offence of "criminal breach of trust" as has been pointed out earlier. As has been pointed out earlier, there is nothing in the complaint to indicate that the applicant had not invested the said amount o rupees ten lacs in the business and had dishonestly misappropriated the same or had converted the same to his own use. In the absence of such allegations, the complaint‑ fails to disclose a prima facie case either under section 406, P.P.C. or section 420, P.P.C. Turning now, to the next allegation regarding commission of an offence by the applicant under section 506, P.P.C., although, it has been alleged in the complaint that the applicant had threatened the respondent No.2 with unpleasant consequences and his abduction but such allegations are again vague. Neither the names of the witnesses in whose presence such threats were given by the applicant to the respondent No.2 have been disclosed nor the time or date of the commission of such offence has been stated in the complaint. Furthermore, the P.Ws. examined by the respondent No.2 before the learned Magistrate during the preliminary enquiry do not support him on this point as nothing has been stated by them in this regard.

7. In view of the aforesaid circumstances, it is clear that the applicant is being prosecuted for the offences which are prima facie disclosed in the complaint filed against him. Consequently, I agree with the learned counsel for the applicant that the prosecution of the applicant before the learned A.C.M. amounts to abuse process of the court.

8. In the result, this application is allowed and the proceedings pending against the applicant before the learned A.C.M. Kotri, are quashed.

9. In view of this judgment MA. 651/90 has become infructuous and therefore, the same is dismissed.

10. It may be pointed out that during the pendency of the present proceedings applicant had deposited his passport in the Court, the same may be returned to him. SA./K‑260/K Petition accepted.