P L D 1962 (W (PLP)

This is a Criminal Miscellaneous Application filed on behalf of the two applicants Muhammad Mehboob alias Pashu and Syed Abdul Qadeer son of S. A. Rasheed praying that the complaint against them by the Opponent No. 1 Mr. Ghulam Qadir Baluch, Advocate, Jacobabad and now pending in the Court of the Sub‑Divisional Magistrate, Jacobabad may be quashed on the two‑fold ground that the matter is one purely of a Civil nature, and that, in any event, the Court at Jacobabad has no jurisdiction to proceed with this complaint.

2. The facts giving rise to this matter may briefly be stated as under.

3. On 23‑6‑61, Mr. Ghulam Qadir Baluch, Advocate, Jacobabad filed a direct complaint in the Court of the Sub- Divisional Magistrate Jacobabad against the present two applicants under section 420/109 P. P. C. The complainant's complaint was that as the Vice Chairman of the Municipal Committee, Jacobabad, he had come to Karachi, in December 1960, to take delivery of two motor chassis from Messrs Haroon Brothers at Karachi which had been purchased by the Municipal Committee, Jacobabad and delivery of which had personally to be taken by the complainant at Karachi in compliance with the instructions of the Chairman Municipal Committee, Jacobabad. The complainant also had his own private car which was a Zepher Ford of 1954 Model bearing No. KAA

711. The complainant had sent this private car to Karachi for repairs. In Karachi the applicant No. 2, Syed Abdul Qadeer met the com plainant and expressed to him his desire to insure the two motor chassis purchased by the Jacobabad, Municipal Committee. The complainant replied that he would first have to obtain the permission of his Chairman because he himself did not know anything about the insurance business. This the applicant No. 2 did not seem to have liked and expressed his disapproval. The applicant No. 2, Syed Abdul Qadeer persuaded the complainant by way of misrepresentations to have his car repaired by applicant No. 1, Muhammad Mehboob alias Pashu representing that he was a motor mechanic. The complainant was taken in by these representations and he accordingly left his private motorcar in Karachi with the applicant No. 1, for effecting the necessary repairs. The complainant then returned to Jacobabad and he mentioned in his complaint that on receiving demands there from time to time through letters from the two applicants for money he used to send them various amounts so that the total amount remitted to the two applicants by him from Jacobabad amounted to Rs. 2,

000. The complainant went on to say in his complaint that the car was not repaired by the two applicants and when the complainant next visited Karachi he found that the car was lying absolutely abandoned and in a very bad condition without any attempt having at all been made by the two applicants even to start the repairs. The complainant then through intervention of some friends was able to get his car back from the two applicants and handed it over to some other party for the necessary repairs. The applicants promised to return the complainant the money advanced by him to them and actually issued in his favour cheque No. 023614 in account No. 475 on Pak. Ismailia Co‑operative Bank Ltd., Karachi, signed by the applicant No. 1, Muhammad Mehboob for the sum of Rs. 1,041‑

22. This cheque the complainant passed on to his bankers, namely the Hsbib Bank, Jacobabad for encashment but the same was dishonoured. On the above facts, the com plainant filed this complaint against the two applicants alleging that they had cheated him of thousands of rupees at Jacobabad. This complaint was accepted by the learned Magistrate who finding a prima facie case under section 420, P. P. C. issued bailable warrants in the sum of Rs. 5,000 against both the applicants. An application was then made on behalf of the two applicants to the learned trial Magistrate, challenging his jurisdiction to hear this case but the learned Magistrate after hearing arguments on the point of jurisdiction, rejected this application holding that he did have jurisdiction to hear this complaint and to try the case. It is against this order of the trial Magistrate that the present revision application has been filed in this Court.

4. Appearing on behalf of the two applicants, Mr. S. A. Ashfaq, Advocate, raised two main contentions. He argued, in the first place, that the facts of this matter made out a case under section 406, P. P. C. i.e., criminal breach of trust and not a case of cheating under section 420, P. P. C. His first con tention was that the complainant had entrusted his car to the two applicants at Karachi, that the car was received by the two applicants at Karachi, that the initial payment of Rs. 700 was made by the complainant personally to the two applicants at Karachi, and that the misappropriation, if any, had also been committed at Karachi. Relying upon section 181 (2), Cr. P. C. Mr. Ashfaq contended that the Court at Jacobabad had no jurisdiction to try this matter. Mr. Ashfaq's second contention was that even assuming that this is a case under section 420, P. P. C., the offence of cheating was completed in Karachi, and that the subsequent loss sustained by the complainant at Jacobabad though a consequence of the cheating was yet not a necessary ingredient of the offence of cheating. Hence section 179 Cr. P. C. would not apply to the facts of this case and the Court at Jacobabad where the consequence ensued would not have jurisdiction to try this matter. In support of this second contention of his Mr. Ashfaq relied upon Kashi Ram Mehta v. Emperor (A I R 1934 All. 499), Gobindram Dowlatram v. Emperor (A I R 1931 Sind 94) Gokaldas Amarsee and others v. Emperor (A I R 1933 Sind 333) and Mukhi Tirathdas v. Jethanand Matvalomal and another (A I R 1937 Sind 68).

5. Now dealing with the first contention raised by the learned advocate of the applicant, it seems to me that it is only necessary to read the complaint to appreciate that the allegations contained therein make out a case of cheating, and not a case of criminal breach of trust. In para. 5 of his complaint and again in para. 8 the complainant mentions the misrepresen tations made to him by the applicant No. 2 which induced him to give his car for repairs to the applicant No. 1, who was not known to him previously. It is manifest from a perusal of this complaint that the complainant parted with his car to the two applicants as a result of the misrepresentations made to him. It is a well‑established principle of the criminal law that where a person parts with his property as a result of misrepresentation and deceit, there can be no question of entrustment by him of that property to that other. ,

6. Mr. Abdul Qadir Qureshy, appearing on behalf of the A. A.‑G. in this matter, also pointed out that the complaint makes out a case of cheating and not a case of entrustment of property. Referring to the above‑mentioned paragraphs of the complaint, Mr. Qureshy contended that the complainant was induced as a result of the applicants' letters to him at Jacobabad to part with money and to remit these sums of money to the applicants at Karachi. Thus, the misrepresentations were made by the applicants to the complainant at Jacobabad as a result of which misrepresentations the complainant parted with money at Jacobabad, and, therefore, the Court at Jacobabad has jurisdiction to try this case.

7. I am in agreement with these arguments of the learned State Counsel. As mentioned by me above, a perusal of the complaint in this case clearly makes out a case of cheating and it is only because the learned Advocate for the applicant wishes to avail himself of the provisions of section 181 (2), Cr. P. C. that ire contends that the facts of this case make out an offence under section 436 and not 420, P. P. C. I, therefore, find no force in this first contention of Mr. S. A. Ashfaq and I accordingly reject it.

8. The second contention of Mr. S. H. Ashfaq is d little more subtle. He contends that assuming that this is a case of cheating, then, even under section 179, Cr. P. C. the Court at Jacobabad would have no jurisdiction to try this case because the consequent loss that ensued to the complainant at Jacobabad is not a necessary ingredient of the offence of cheating. This offence, Mr. Ashfaq argues, was complete at Karachi and the subsequent loss sustained by the complainant at Jacobabad has nothing to do with the main offence of cheating and is not a consequence of it within the meaning of section 179, Cr. P. C. I have Carefully applied my mind to this second argument of Mr: Ashfaq and I have also examined the cases relied upon by him in support thereof. It is true that the Full Bench in A I R 1934 All. 499 laid flown the proposition that‑

"If the offence is complete in itself by reasons of the act having been done and the consequence is a mere result of it which was not essential for the completion of the offence, then section 179, would not be applicable." In the instant case, however, it is important to note that the misrepresentations made by the applicants as a result of which the complainant was induced to part with money amounting to Rs. 2,000 were received by the complainant at Jacobabad and this money was sent by him from Jacobabad to the applicants at Karachi. Thus, the loss sustained by the complainant at Jacobabad is not an immaterial consequence or result of the offence of cheating but a very essential part and ingredients of this offence of cheating. The two important ingredients of an offence under section 420, P. P. C. are firstly the misrepresen tations which induced the person deceived to part with property and secondly the actual parting with that property. In this particular case these misrepresentations were received by the complainant at Jacobabad and it was from Jacobabad that he remitted sums of money to the applicants acting on these mis representations. It is thus abundantly clear that the offence of cheating in this particular case although it started originally in Karachi yet it was carried on and continued by the two applicants after the complainant had returned to Jacobabad. Thus, the offence of cheating was committed at Jacobabad and the Court at Jacobabad would have jurisdiction to try this case. In this view, then, there is no force in this second contention of Mr. Ashfaq.

9. Mr. Azizullah Shaikh appearing on behalf of the opponent No. 1 complainant invited my attention to the case of Mobarak Ali Ahmad v. The State of Bombay (P L D 1958 S C (Ind.) 115). It was held in that case that where an accused from Karachi, in Pakistan had made fraudulent misrepresentations to the complainant at Bombay in India through letters, telegrams and telephone talks, these fraudulent statements of the accused at the Karachi‑end became representations to the complainant only when they reached the cognition of the' complainant at the Bombay‑end, and therefore, these fraudulent representations were made to the complainant at Bombay in India notwithstanding that the accused was making representations from Karachi in Pakistan. Now, in the instant case, too, r find that letters were addressed by the applicants to the complainant at Jacobabad, were received by him at Jacobabad and were acted upon by him at Jacobabad in remitting sums of money from Jacobabad to the applicants at Karachi. The cognition of these letters was taken by the complainant at Jacobabad and, therefore, the Court at Jacobabad would have jurisdiction to try this case.

10. In the result, therefore, I find no force, in this revision application and I direct that it be dismissed. S. B./A. H. Application dismissed.