1990 P Cr (PLP)

Date of hearing: 29th October 1989. This is an application under section 561-A, Cr.P.C. for the quashment of criminal proceedings against the applicants under section 420/406, P.P.C. pending in the Court of Assistant Commissioner and S.D.M Eidgah Karachi.

2. The case arose from a direct complaint filed by respondent No.2, against the applicants, wherein it was alleged that they had purchased bags of white sugar from him and took delivery by offering a cheque, which was dishonoured. It is the case of applicants that the parties had business dealings in relation to a contract taken from Pakistan Mineral Development Corporation, Hyderabad, and the respondent No.2, who had to pay a sum of Rs.2,70,000 as share of profits has filed this case with a view to avoid payment.

3. To constitute an offence of cheating, there must he deception and dishonest inducement to do or omit to do something. As observed in M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai reported in A I R 1938 Mad. 129, mere deception or mere dishonesty is not a criminal offence. The effect of bouncing of a post-dated cheque was examined in the above case and it was observed: "In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by (Oil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal -and it is an abuse of the process of a Court to attempt to create new crime in order to compel men to conform to a high standard of profit has failed to force them to execute their promises."

4. In R.S. Ratra v. Ganesh Dass reported in A I R 1940 Lah. 93, it was held that deception is concealment of cheating and there is no cheating unless deception induces person deceived to part with any property or to do or omit to do anything that he. would not do or omit to do but for such deception. The issue of post-dated cheque with knowledge that drawer had no funds in bank, therefore, did not amount to cheating but was purely a civil wrong.

5. The cases reported as Saeeduddin Oureshi v The State P L D 1963 Kar. 54, Gul Jamal Khan and another v. Shah Jahan Khan 1971 P Cr. L J 943, Jamil Zahid v. The State 1972 P Cr. L J 1297 and Muhammad Saleem Rana and another v. Sh. Saleem Hassan and another P L D 1978 Lah. S: I also support this ' view. In the last cited authority it was observed: "The inability to pay a debt did not prove mens rea. The documents relied upon by the complainant indicated that the, accused accepted their liability and promised to pay up in future. For their failure to pay up in. time they could not be dragged in criminal litigation since it made out no offence. To take criminal proceedings in the hope that the debtor will the amount claimed rather than face a criminal charge, to use the Criminal Courts for enforcing a civil claim is highly improper and is an ~,~ abuse of the process of the Court."

6. The case reported as Pakistan International Air Lines Corporation v. Khalid Waheed and others 1981 S C M R 573, proceeds on quite different premises. In that case also it was observed that the mere fact that a cheque is dishonoured does not necessarily mean that the drawer of the cheque had issued it with the knowledge that he had no funds in his account.

7. There is, therefore, good deal of force in the contention made on behalf of applicants that dispute between the parties is of civil nature and resort to B criminal prosecution is an abuse of the process of Court.

8. It may be noted that section 420, P.P.C. is one of those sections in which the Court should carefully discriminate between the civil liability and a crime. A criminal proceeding initiated on a complaint which does not disclose a criminal offence amounts to an abuse of process of Court and in the words of Newsam, J., C expressed in M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai reported inl A I R 1938 Mad. 129 `Since prevention is always better than cure, the obligation) to prevent specious and spiteful criminal prosecutions for actions which, though strictly dishonoured, yet do not amount to crime, is one that must never be shirked'.

9. For what has been said above, I accept the application made under section 561-A, Cr.P.C. and quash the proceedings against the applicants pending in the Court of Assistant Commissioner and S.D.M. Eidgah, Karachi, (Case No.356 of 1988) under section 420/406, P.P.C. S.A./B-145/K Proceedings quashed.