1968 P Cr (PLP)

The appellant wrote a letter to Munshi Allah Rakha complainant (P. W. 6) on 31st July 1961 (Exh. P. H./l on the record) offering to supply him good quality coal at the rate of Rs. 60 per ton. The letter was followed up by a personal visit of the appellant to Sargodha where the complainant had started a brick-kiln. They both entered into an agreement dated the 6th of August 1961 (Exh. P. N.) whereby the appellant undertook to supply coal to the complainant at his kiln in Sargodha on the condition that the latter would advance a sum of Rs. 300 to him through the Central Co-operative Bank Limited, Sargodha. It was further stipulated that the appellant would continue to supply coal at the rate of Rs. 60 per ton during the whole of the season and that he would be prepared to take back the consignment, if it was not of a good quality. The payment was to be made on the weighment of the consignment done by the railway authorities. A few days later, on 10th August 1961, the appellant wrote letter Exh. P. G. to the complainant asking for the remission of another sum of Rs. 600 on the pretext that he had to deposit at least Rs. 2,000 with the colliery. Accordingly, the complainant remitted a sum of Rs. 600 by means of another cheque drawn on the National Bank of Pakistan dated the 15th August 1961, the receipt of which was duly acknowledged by the appellant in his letter (Exh. P. C.) dated the 23rd of August 1961. He also sited therein that he had struck a bargain for fifteen wagons of coal with the colliery to be supplied to the complainant. This was followed by letter (Exh. P: D.) dated the 28th August 1961, in which it was stated that Rs. 2,000 had been deposited to the appellant on account of the supply of ten wagons of coal as against fifteen mentioned in the previous letter Exh. P. C. The receipt of Rs. 900 previously remitted through cheques was also re-acknowledged. On 19th September 1961, the appellant sent letter Exh. P. E. akin, for yet another amount of Rs. 1,000 in n4dition to Re. 910 already received by him. It appears that on 2nd March 1961, the complainant wrote letter Exh. D. B. to the appellant informing him that he was busy in the efforts to see that the kiln got going and that he would inform him about the time when the coal should be despatched to him. This letter was followed by yet another letter Exh. D. D. dated the 21st Septem ber 1961, in which the complainant explained the reason for the delayed commissioning of his kiln as the boring of the well for the supply of the water could not be completed in time owing to a wrong choice of site. 'It was further stated therein that after the completion of the boring in about a week's time, he (the complainant) would be in a position to order the supply of coal. This letter clearly gives an indication that the supply of coal was to be withheld till further instructions were received from the complainant. The aforesaid two letters Exhs. D. B. and D. C. were further supplemented by telegram Exh. D. A. dated the 11th of October 1961, to the effect that the booking of coal should be detained till further orders. Three weeks later, the complainant addressed a registered notice to the appellant Exh. P. K/1 on his usual address of Khewra describing him as a salt agent. Bashir Ahmad Postman (P. W. 9) to whom the same was entrusted for delivering in vain tried to contact the appellant and after having made three endorsements on the 2nd, 3rd and 10th of November 1961, as to the non-availability of the appellant returned the same as undelivered. He further deposed that the appellant was personally known to him and could not be traced in spite of his best efforts. This notice contained definite allega tions of breach of contract and of misappropriation of the sums advanced. It contains no further demand of .the supply of coal but only sought return of Rs. 910 within one week of its receipt along with the damages to be assessed during a personal settle ment, failing which it was threatened that Criminal proceedings should be initiated against the appellant. The complainant then allegedly sent his agents to the appellant to settle accounts with him though none was produced at the trial, and ultimately after having waited for about a year, on 28th March 1962, made application Exh. P. N. at City Police Station, Sargodha, on the basis of which a formal first information report Exh. P. N/1 was drawn up.

3. The appellant was allowed bail before arrest by an order of this Court dated the 22nd of October 1962, and remained on bail during the trial, except for a few days when be was remanded to custody in ignorance of .the orders of the High Court.

4. At the trial, the appellant admitted the execution of agreement Exh. P. B. undertaking to supply coal to the complainant and the receipt of Rs. 910 he also conceded that no coal had been supplied by him to the complainant for the simple reason that he had been stopped by the complainant himself vide letters Exhs, D.B., D.D. supplemented by telegram Exh. D. A. and that since thereafter he had, received no instructions from the complainant to send the consignment of coal for which he kept- on waiting for long, resulting in heavy losses to him. He produced three witnesses in defence of whom, Muhammad Saleem (D. W. 1) and Ght0tn Tahir (D: W. 3) deposed that. We, appellant worked as a contractor for the supply of coal and had not deceived anybody within their knowledge. Ghulam Tahir (D. W. 3) deposed that he himself worked as an agent for the supply of coal and that at the relevant time he had transported a consignment of about 4/5 wagons from the colliery to the railway station at the instance of the appellant on receipt of Re. 1 per ton as his commission. Feroze Khan Lambardar of Khewra appeared as (D. W. 2) and credited the appellant with good character who according to him had never cheated anybody.

5. Placing full reliance on the prosecution evidence consisting of the testimony of Allah Rakha complainant, his Munshi, Zafar Hussain (P. W. 1), Muhammad Ibrahim, Booking Clerk. Khewra (P. W. 7), Feroze Din, Postal Clerk, Sargodha (P. W. R) and Bashir Ahmad, Postman, Khewra (P. W. 9) supported by docu mentary evidence available in the form of the aforesaid letters and notices, the learned trial Magistrate came to the conclusion that the offence had been fully brought home to the appellant and accordingly awarded him a consecutive term of imprisonment amounting to five years in all, giving rise to the present appeal.

6. The principal contention raised by the learned counsel for the appellant before me is that having admitted the execution of the agreement to supply coal (Exh. P. B.) and the receipt of Rs. 910 the appellant had offered a plausible explanation for the non-supply of coal, namely, that the same had been stopped by the complainant himself vide letters Exhs. D. B. and D. D. followed by telegram Exh. D. A., after which there was nothing to indicate that the complainant had issued fresh instructions to the appellant for the despatch of the consignment of coal. It was argued that this explanation had not received proper consideration at the hands of the learned trial Magistrate which clearly rendered the allegations completely devoid of an element of criminality.

7. In cases like this where the determination of the criminal or civil nature of liability might present some difficulty illustra tion (g) to section 415 of the P. P. C. offers a proper and safe guide. It reads as follows:- "A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats ; but if A, at the time .of obtaining the money, intends to deliver the indigo plant and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract." The precise question which thus falls for determination is whether the appellant at the very outset when he entered into an agreement with the complainant had *a dishonest intention. As .is clearly shown by the aforesaid illustration, if he had no such intention at the outset which might have been a subsequent development, as a result of his changed mental attitude, -the nature of liability would not become criminal so as to attract the- application of section 415, P. P. C. No doubt, one cannot avoid an impression of some overdoing on the part of the appellant as indicated by his pious professions and repeated assurances of his bona fides, yet when the question is judged by the two simple principles of administration of criminal justice, namely, that the onus to establish an offence lies on the prosecution and that the benefit of doubt goes to the accused person, he admitted despatch of the two letters Exhs. D. B. and D. C. to the appellant further supple mented by the telegram Exh. D. A. would clearly make the existence of a dishonest intention on the part of the appellant right from the beginning rather doubtful. Although the appellant did not claim to have actually booked any consignment of coal, as also established from the evidence of Muhammad Ibrahim, Booking Clerk, Railway Station, Khewra (P. W. 7) that he appellant never despatched any consignment of coal between 1st of November and 11th of November 1961. Yet this admitted failure on the appellant's part to fulfil his contractual obligations, when considered in the light of the complainant's letters Exhs. D. B. and D. C. and telegram Exh. D. A. would not amount to an adequate discharge of the onus of proof as to the initial existence of dishonest intention on his part. As stated earlier, any subsequent development of criminal propensities in him would be wholly irrelevant in view of illustration (g) to section 415, P. P. C. reproduced earlier. If, however, letters Exhs. D. B., D. D. and telegram Exh. D. A. admittedly sent by the complainant had not been received by the appellant, which aforded him at least a seemingly reasonable excuse for the non despatch of the consignments of coal, there would have been sufficient material on the record coupled with the subsequent conduct of the appellant to raise a strong presumption of his mala fide intention even at the earliest stage, Again it is established beyond doubt by defence evidence that the appellant was working as a contractor for the supply of coal and to that extent he had not misrepresented himself to the complainant. In the circumstances therefore, there is no convincing evidence on the record to establish the existence of the element of mense rea on his part on 6th August 1961 when the appellant entered into an agreement with the complainant. In that view of the matter, the offence of cheating punishable under section 420, P. P. C. does not stand established against the appellant, though the wrong might warrant a civil action against him.

8. It is also necessary to refer to yet another point before parting with the judgment. In so far as the offence under section 420/511, P. P. C. relating to the despatch of V. P. P. of the value of Rs. 470 is concerned, it was frankly conceded by the learned counsel for the State that there was no material whatever on the record to connect the appellant with the offence of attempted cheating inasmuch as, there was nothing to show that the V. P. P. had been despatched by the appellant or had on being returned been received back by him. Nor was there any thing to show what were its real contents. As such, there was no basis whatever for the learned trial Magistrate to convict the appellant for this offence.

9. In consequence I allow the appeal, set aside the conviction and sentence of the appellant and acquit him. He is on bail and the bail bonds stand discharged. Appeal allowed.