1976 P Cr (PLP)

Maqbool Hasan and Mahboob Ahmad for Respondent No.

2. This petition has been filed for the purpose of quashing the proceedings pending in the Court of Mr. Faqir Syed Anwaruddin, Magistrate 1st Class, Sialkot, under section 420/407, P. P. C.

2. The petitioner as well as respondent No. 2 have been summoned by the learned trial Court under the said provisions of law on the complaint having been filed by respondent No. 1.

3. According to the complaint, a copy of which has been filed along with the peti,ion as Annex. 'A', respondent No. 1, the complainant gut booked 13 cartons of sports goods with the Railway authorities at Sialkot for Karachi for being sent abroad. The said cartons were got insured with the Muslim Insurance Co. with reference to Sarhad Bank, Sialkot, against Rs. 65,670 on 22‑12‑1972. According to para. 2 of the complaint, the Insurance Co. undertook to make good the loss in case it was sustained by respondent No. 1, up td Rs. 65,670.

4. It is alleged in the complaint by respondent No. 1 that after the goods were received at Karachi his shipping agent informed that 13 cartons, as reference to above, were found in damaged condition. The loss was surveyed and assessed by the Surveyors, and the amount in lieu thereof was demanded by the complainant from the Insurance Co. but the same was refused to be paid. The precise offence as alleged to have been committed by the petitioner as well as respondent No. 2 is described in para. 4 of the complaint in the following words:‑ "(a) That the Railway Company as a Carrier accepted the consignment of 13 cartons of Sports goods under the contract R. R. No. 108923, dated 22‑12‑1972, Sialkot for booking. Not giving due care to the consignment the P. W. R. authorities have committed the breach of trust. (b) That the Muslim Insurance Company issued Certificate of Insurance No. MSC/1113/72, dated 22‑12‑1972 for Rs. 65,670 and promised to pay the loss or damage. (c) That the Muslim Insurance Co. induced the complainant to have the consignment insured with them. (d) That the accused Muslim Insurance Co. has acted fraudulently and dishonestly, by evading to pay the loss. (e) That the Muslim Insurance Company has caused damage to the property of the complainant by ignoring the payment of the loss according to the contract."

5. In order to see as to whether any offence under the relevant pro visions of law has been committed by the petitioner and respondent No. 2, the provision as contained in section 405, P. P. C. (criminal breach of trust) is reproduced below for benefit:‑ "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'." As far as the allegation against the petitioner is concerned it is careless ness on his part. According to the complainant, the Railway Administration did not take proper care in delivering the goods, as mentioned above, in safe and sound condition and as such committed breach of trust. According to law, after the property is entrusted it has to be shown that the same has been dishonestly misappropriated or converted to his own use by the person with whom it was entrusted or the said person has dishonestly used or disposed of the same in violation of any direction of law. In the present case the only allegation against the petitioner is that due care has not been shown with regard to the goods hooked with him. As such, the offence alleg ed to have been committed by the petitioner is not covered by section 405/ 407, P. P. C. If on account of the damage caused to the goods in question respondent No. 1 has sustained some loss then a suit for the recovery of the amount as damages would be competent. It is a civil liability which the complaint itself discloses to be performed by the petitioner.

6. There is no allegation in the complaint made against respondent No. 2 that he fraudulently or dishonestly induced respondent No. 1 to have the consignment insured with him. It has been alleged that the Insurance Co. has fraudulently and dishonestly avoided to compensate the loss suffered by respondent No.

1. The essential ingredient of the offence of cheating is "fraudulent or dishonest inducement by the person so deceived to deliver any property to any person". If there is mere inducement and it does not involve any element of fraud or dishonest intention, then delivery of any property on account of said inducement would not amount to cheating. B It has been argued that it will be shown only by way of evidence that respondent No. 2 dishonestly and fraudulently induced respon dent No. 1 to deliver the goods in question and, as such, it would be premature to assess at this stage, as if there is no element of fraud or dishonest intention on the part of respondent No.

2. I am afraid, this contention has no force in the circumstances of the case. The complainant (respondent No. 1) cannot, under the law, go beyond the scope set out in the complaint. He has to lead evidence in relation to the allegations made in the complaint. If he has not alleged therein that respondent No. 2 acted fraudulently and with dishonest intention in inducing him to deliver the Property, that he cannot he allowed to lead evidence in regard to that furthermore, the inducement as alleged on the part of respondent No. 2 is only for getting the goods insured with him. It is not the case of respondent No. 1 that he delivered the goods to the petitioner on account of fraudulent inducement of respondent No.

2. If respondent No. 1, the complainant, has suffered any loss anal tile same has not been made good by respondent No. 2, as alleged in sub‑para. (d) of pare. 4 of the complaint, then the only remedy available to him is to sue for the recovery of compensation.

7. It is also interesting to notice that there is no allegation in the com plaint that respondent No. 1, the complainant, ever contacted personally either the petitioner, Chief Commercial Manager, Pakistan Railways, or the Chief Manager, Muslim Insurance Company Limited. It is strange as to how then it can be alleged that they have committed criminal breach of trust or have fraudulently or dishonestly induced respondent No. 1 to deliver the property in question. It is well settled law that in criminal matters liability will be at personal level alone. It is not possible under the law that, if any person in the office of the petitioner or respondent No. 2. has committed any criminal offence then they being the responsible officers of their organization would be hauled up for that.

8. According to law, if no case is made out for any criminal offence against the accused person then it will be abuse of the process of the Court to prolong the agony by keeping the case pending. As discussed above, no case has been made out either against the petitioner or respondent No. 2 for the offence alleged to have been committed by them on the basis of the complaint tiled by respondent No. 1.

9. As a result of the above discussion, the proceedings pending in the trial Court in relation to the complaint filed under section 420/407 by respondent No. 1 are hereby quashed. Proceedings quashed.