1971 P Cr (PLP)

Riasat Ali v. State 1970‑P Cr. L J 445 Saeeduddin Qureshi v. State P L D 1963 Kar. 54 ; R. S: Ratra v. Ganesh Das A I R 1940 Lah. 93 and .H.. K. Shaw v. Suresh Chandra Mitter A I R 1936 Cal:. 324 rel. (b) Criminal Procedure Code (V of 1898)

S. 561‑A‑Quashment of proceeding‑Facts stated in F. I. R: lodged under Ss. 420 & 406, Penal Code; showing inability or at worst a refusal on part of petitioners to pay outstanding amount‑Held' such fact could not give rise to criminal liability against petitioners‑Proceedings quashed‑Penal Code (XLV of 1860), Ss. 420 & 406. Muhammad Hanif Niazi for‑Petitioners. Allah Wasaya for‑ Respondent: This is an application under section 561‑A, Cr. P., C. for the quashment of criminal proceedings against the petitioners under sections 420/406, P. P. C. pending in the Court of Rana Muhammad Bashir, Magistrate 1st Class, Mianwali. The case arose from a direct complaint lodged by respondent Shah Jahan Khan against Gul Jamal Khan and Gul Muhammad Khan the present petitioners and one Saad Ullah, wherein it was alleged that Shah Jahan Khan had been supplying his cotton of Kharif 1968, through Gul Mohammad Khan and Saad Ullah to the shop of the accused persons situated at Kacha Khuh, that on settlement the accounts for the same a sum of Rs. 4,000 has been found due from the accused, that Gul Jamal Khan had, in payment of the said amount, issued a post‑dated Cheque No. AWBA. 623656 dated 10‑1‑1969 on the Mian Channun Branch of the Habib Bank, that the cheque when presented was dishonoured on the ground that Gul Jamal Khan had no personal account with that Bank, that the accused when contacted promised to pay the amount from the cotton crop of Kharif 1969 and accordingly changed the date of payment of the cheque from 10‑1‑1969 to 10‑11‑1969, but that the cheque was again dishonoured for the same reason as before, when presented to the Bank. The complainant had Further alleged that the accused persons when contacted later had begged to be excused and had promised to pay the dues at an early date but that they had failed to do so and had thereby misappropriated the amount by fraud. 2. It appears that in pursuance of the complaint, summons were issued to the present petitioners who consequently appeared before the Magistrate and were granted bail. 3. Mr. Muhammad Hanif Niazi, the learned counsel for the petitioners contended that as the cheque had been issued in payment of the dues which had been found outstanding after setting the accounts in respect of supply of cotton in 1968, no criminal liability could arise against the petitioners in the event of the cheque being dishonoured, for there was neither any cheating nor a criminal breach of trust. There are numerous decisions to A support the view that the liability in the event of a cheque being dishonoured, is of civil and not of criminal nature (vide Riasat Ali v. State (1970 P Cr. L J 445), Saeeduddin Qureshi v. State (P L D 1.963 Kar. 54), R. S. Ratra v. Ganesh Das (A I R 1940 Lah.,93) and H. K. Shaw v. Suresh Chandra Mitter (A I R 1936 Cal. 324). The criminal prosecution of the petitioners merely on the ground of the cheque having been dishonoured, is not justified. 4. It could be argued that a deception had taken place if it were shown that the complainant had been fraudulently induced to part with his cotton on the security of the cheque in question but that is also not the case of the complainant in the F. I. R. Mr. Allah Wasaya, the learned counsel for the respondent admitted during the arguments, that the cheque had not been issued for any particular or specific delivery of cotton. It thus appears that the amount of Rs. 4,000 had been found outstanding against the petitioners when the accounts for the supply of cotton of Kharif season 1968 had been finalized. The fats stated in the F.I. R. also do not show a case of criminal breach of trust. They only show an inability, or at the worst refusal on the part of the petitioners to pay the outstanding amount which, however, cannot give rise to a criminal liability against the petitioners. I, therefore, allow the application and quash the criminal proceedings against the petitioners under sections 420/406, P. P. C. pending in the Court of Rana Muhammad Bashir, Magistrate 1st Class, Mianwali. Application allowed.