1975 PLP 165 (SCMR)

WAHEEDUDDIN AHMED, J.‑‑The petitioner filed a complaint against respondent No. 2 for the offence of cheating under section 420, P. P. C. The matter was heard by A. C. M., Karachi and the learned Magistrate acquitted him of the criminal offence on the ground that the case was of a civil nature. The petitioner challenged this order before the learned Sessions Judge, Karachi. The learned Additional Sessions Judge, on the 9th July 1971, referred the matter to the High Court of Sind & Baluchistan, Karachi, under section 438, Cr. P. C. and recommended that the order of the acquittal of respondent No. 2 be set aside. The Criminal Reference No. 44 of 1971, arising out of it, came for hearing before a learned Single Judge of the High Court and by order dated the 16th January 1974, the High Court, finding no justification for accepting the reference, rejected it. The petitioner seeks permission to file an appeal against the said order. The allegation against respondent No. 2 is that he had started a private limited Company named and styled as M/s. The Claims Settlement Corpora tion Limited and had advertised in the newspapers that any person holding verified claim compensation book could get the property in lieu of their claims through the Corporation. The petitioner approached respondent No. 2 and entrusted to him the compensation books of himself and his brother for getting the flats Nos. 6 and 11 in the Raja Mansion in lieu of Rs. 9,640 out of the said compensation books. It is alleged that the petitioner executed a power of attorney in favour of respondent No.

2. It is further alleged that respondent No. 2 obtained the entire Raja Mansion consisting of about 200 flats by giving the highest bid at the public auction held by the Settlement Department on the 12th September, 1969, for Rs. 9,95,

040. This building included the fiats Nos. 6 and 11 required by the petitioner and his brother. It is alleged that thereafter, respondent No. 2 took no action for transferring the said flats nor he returned the compensation books to the claimants. It appears, that K. M. C. published a notice of tax dues against respondent No. 2 in respect of this building known as Raja Mansion and threatened to attach the building for auction sale on account of arrears. Thereupon, the petitioner served notice on the respondent No. 2 for returning the compensation books but he did not get any satisfactory reply. He filed a direct complaint under sections 420, 409 and 34, P. P. C. After hearing the learned counsel for the petitioner, we are satisfied that the dispute between the parties is of a civil nature. We agree that the conduct of respondent No. 2 has not been above board but it is doubtful that he committed any offence of cheating in respect of the compensation books entrusted to him. In our opinion, the High Court was perfectly justified in not accepting the reference of the learned Additional Sessions Judge. There is no ground to interfere. The petition is dismissed. Petition dismissed.