1994 P Cr (PLP)

Hameed Ayaz and Ghulam Ghous for Respondent No.2. Date of hearing: 5th May, 1992. The petitioner seeks quashment of proceedings, which are outcome of FIX No.221 of 1991 of Police Station S.I.T.E., Karachi registered on 13-1.1991, under sections 406 and 420, P.P.C. pending before A-C.M., Karachi (West). The facts in brief are that the respondent No.2 who deals in the manufacture of medicines under the name of Master Pharmaceuticals (Pvt.) Ltd, Karachi, appointed the petitioner as a distributor of their drugs for Hyderabad Region through appointment letter, dated 26-11-1987. The drugs were being supplied and the payments were being made by the petitioner. The petitioner's case is that Deputy Managing Director of respondent No.2 came in contact with him at Hyderabad and negotiated for distribution arrangements of the drugs of respondent No.2 for Hyderabad. Region, comprising of territories of the Districts Hyderabad, Nawabshah, Tharparkar, Sanghar and Mirpur Khas. The arrangements were reduced into writing, signed by the petitioner as well as by respondent No.2, on 26-11-1987 under the subject "appointment of distributor for Hyderabad Region". Persuant to said agreement, petitioner arranged distribution of products of respondent No.2, over the territory of Hyderabad Division and earned considerable profits. It is further the case of petitioner that the Deputy Managing Director of respondent No.2 became greedy and wanted- to extort money from petitioner at the rate of 2% on supply order and the total sales of products of respondent No.2. For sometime the petitioner paid to the Deputy Managing Director at the said rate but declined to pay thereafter, due to slackness in the market, with the result that the Deputy Managing Director of respondent No.2 in order to damage business reputation of petitioner, took steps against the petitioner inasmuch as that distribution agency for Nawabshah District was terminated without notice, distribution agency for District Mirpur Khas was terminated by a short notice of 6 days, the staff of respondent No.2 started supplying its products directly to the customers, caused excessive infiltration of its products in the market of Hyderabad District, induced working staff of petitioner to leave the employment of the petitioner and to join the establishment of respondent No.2 and stopped or delayed supply of its products against the supply orders of the petitioner. Since all these steps were in violation of the terms of distribution agreement, two letters dated 20-6-1990 and 26-6-1990 (Annexures "C" and "D") were addressed by the petitioner to respondent No.2, pointing out above breaches of terms of agreement and requiring respondent No.2 to redress the wrong done to the petitioner. Instead of redressing hi.5 grievance, F.I.R. No.221/91 under section 406/420 of P.P.C., was filed by one Muhammad Saleem Gohar, the Sales Manager of respondent No.2, alleging that a sum of Rs.2,72,091 was due against the petitioner who was trying to blackmail the firm of respondent No.2. On such F.I.R., the petitioner was arrested and subsequently released on bail. The respondent No.2 has filed counter-affidavit to the petition and has taken legal objection with regard to the maintainability of the petition and also that the petitioner had defrauded the respondent No.2. A number of documents are annexed to counter-affidavit, showing that the Income Tax Department as well as the Corporate Law Authority have also initiated proceedings against the petitioner who had wrongly shown himself as the proprietary of a firm which did not exist and/or the petitioner was working under a fake name. It may also be mentioned that after the F.I.R., since the challan was not being put up, the petitioner filed C.P. No.1297 of 1991 before this Court and on 18-11-1991 the S.I.P. of S.I.T.E. Police Station, Karachi appeared and made statement that the challan had been submitted in the Court of A.C.M. (West), Karachi, and the said Magistrate has fixed on 19-11-1991 as the next date of hearing. The petitioner did not press the C.P. and it was disposed of as such. The contention, of the learned Advocate for the petitioner is that the perusal of the F.I.R., would show that there was an agreement between the parties for the supply of drugs and that an amount of Rs.27,20,917 as arrears was due against the petitioner. There being business dealing between the parties and specific amount being shown due against the petitioner, there was neither any breach of trust nor cheating as alleged. It was a matter of settlement of accounts between the parties and payment of money, if any, due against the petitioner. It is contended that the remedy available to the respondent No.2 was by way of a civil suit and not by way of criminal litigation which exercise is undertaken to pressurise petitioner for payment of alleged dues. Continuance of criminal proceedings in these circumstances would be abuse of process of Court. ? I have heard the learned Advocates for the respondent No.2 have contended that the FIX, was filed on 31-7-1991 under section 406/420 of P.P.C., and the challan was also submitted under the said sections but the Magistrate who is seized of the case, has framed charge against the petitioner under section 406/420/467/468/471/472 of P.P.C. and since some of the sections under which the charge is framed are not triable by the learned A.C.M., he proposes to send the case to the Court of Session for trial according to law. A certified copy of the charge framed by the learned A.C.M. and Section 30 Magistrate Court No.1, (West) Karachi, has been placed on the record today by the learned Advocate for respondent No.2. His next contention is that the petitioner should have moved the trial Court in the first instance under section 249-A of Cr.P.C. or in case, the record is sent to the Court of Session, then under section 265-K of Cr.P.C., before approaching this Court under section 561-A of Cr.P.C. I have heard the learned Advocates at length. There is no appearance by tire State counsel. The perusal of the F.I.R., clearly shows that the petitioner was the distributor of the drugs manufactured by respondent No.2, as he was appointed distributor under letter dated 26-11-1987. It is also clear from the contents of the F.I.R., that payments of huge amounts were made in the past by tire petitioner and a sum of Rs.2,72,091 was due against the petitioner which he has not paid. The allegations in the F I.R., further reveal that there was contractual obligation between the parties in so far as the terms of the distribution agreement are concerned Without adverting to the allegations of the petitioner, which resulted in breach of certain conditions of the agreement, it is clear that the matter was a civil nature and the respondent No.2, instead of welting redress through a civil Court, filed the F.I.R., so as to pressurize the petitioner to make payment of the amount due. In Shaikh Muhammad Taqi v. The State 1991 P Cr. L J 963, this Court observed that mere breach of contract cannot give rise to a criminal prosecution and the amount so secured is till repayable and can be recovered through a competent civil Court. It was also held that all moral wrongs are not necessarily criminal offences and a broken promise was not a criminal offence. In Muhammad Hassan v. Manzoor Ahmed 1991 P ?Cr: L J 2177 this Court quashed proceedings under section 506/420, P.P.C. and observed that the powers of the High Court under section 561-A of Cr.P.C. and those of the trial Court under sections 249-A and 265-K co-extensive. In Muhammad Uris v. The State 1990 M L D 1583, this Court observed that the powers of High Court under section 561-A and those of the (sic) refusing to quash the proceedings under sections 406, 420 and 468, P.P.C., as the facts alleged in complaint prima facie disclosed commission of criminal offence. In Asif Ali . Zardari v. The State 1992 P Cr. L J 58, a Division Bench of this Court held that the powers of High Court to quash judicial proceedings in order to prevent harassment of an accused by invoking of provisions of section 561-A of Cr.P.C. are unfettered and if the Court comes to the conclusion that continuance of such proceedings against the accused would defeat rather secure ends of justice or that no result in furtherance of justice would come out, the proceedings in the case can no doubt be quashed. From the perusal of the F.I.R., no criminal offence seems to have been made out and the respondent No.2 has turned the dispute of civil nature 14 into criminal offence to pressurize petitioner for payment of dues. The powers of this Court under section 561-A of Cr.P.C. are co-extensive with the powers of the trial Court under section 249-A or section 265-K, Cr.P.C. as held in a number of cases, some of which are referred to above. The action against the petitioner, if any, being taken by the Income Tax Department or by the corporate law Authority would in no way strengthen the cause of the respondent Not in so far as the proceedings eminating from F.I.R., are concerned. In the circumstances of the case and the above discussion continuance of proceedings pending against the petitioner before A.C.M. (West) Karachi or if sent by him to the Court of Session, being outcome of F.I.R. No.221 of 1991 Police Station S.I.T.E., Karachi shall be an abuse of process of the Court and the same are hereby quashed. These are the reasons of the short order dated 5-5-1992. N.H.Q./N-078/K???????????????????????????????????????????????????????????????????????????????? Proceedings quashed.