2008 PLP 365 (MLD)

MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.

Amjad Khan son of Muhammad Amin (respondent No.2) has been challaned in case F.I.R. No. 424 of 1998, dated 27-11-1998 for the offence under sections 406/419/420/468/471, P.P.C. registered at Police Station Civil Lines, Lahore. During the trial, respondent moved application under section 249-A, Cr.P.C., the same was dismissed by the trial Court vide order, dated 16-3-2004 but the revision against the said order was allowed by Additional Sessions Judge, Lahore vide order, dated 31-8-2004 and respondent was acquitted from the charge. Hence, this appeal against acquittal.

2. Precise allegation against respondent No.2 as penned in the F.I.R. is that he being a commission agent and owner of show-room under the name A.K. Motors had assured the appellant that the vehicle in dispute is under no encumbrance and that customs and other duties have already been paid. Being satisfied by the said assurance, appellant purchased the car on payment of Rs.4,50,000 to respondent in the presence of one Amjad along with his commission of Rs.5,

000. Later on the Custom Authorities impounded the car because the customs duty was not paid. The appellant made several requests to respondent for the return of his money but he paid no heed and finally present F.I.R. was got registered.

3. Learned counsel for the appellant submits that learned revisional Court while passing the impugned order has travelled on a wrong path while ignoring the principle settled by the superior Courts. It is submitted that it is well-settled that illegality in the investigation does not vitiate the trial but learned trial Court while observing that the re-investigation in the matter was conducted by the agency without prior permission of the Magistrate, has erroneously acquitted respondent No.2 from the charge. Learned counsel submits that it was respondent/accused who had cheated the appellant by showing that the vehicle in dispute was custom paid vehicle and clear from all sort of encumbrances but later on it transpired that the Customs Duty was never paid when the vehicle was impounded by the Customs Authorities. Learned counsel further submits that the revisional Court has erroneously observed that the dispute between the parties is that of civil nature and that the criminal liability against respondent could not be fixed because he was only a commission agent. Submits that in fact it was the respondent who had defrauded appellant by showing him the fake documents and that the appellant has been deprived of his precious right to prove charge against respondent by the revisional Court while acquitting him (respondent) at the initial stages of the trial under section 249-A, Cr.P.C. Conversely counsel for respondent No.2 submits that the vehicle in dispute remained under the use of appellant for almost three years but he never bothered to get it transferred in his name and this conduct of the appellant is sufficient to doubt his credibility. Submits that registration of this case after the lapse of many years shows the mala fide of appellant as well. It is further submitted that respondent being a commission agent is running his business through a show-room under the name A.K. Motors, he had only introduced the parties for the sale of the vehicle and got commission for the said job and that the respondent could not be saddled with the responsibility of fraud, misrepresentation or cheating.

4. Affer hearing learned counsel for the parties and perusing the record, I have observed that the precise allegation against respondent is that he was a commission agent and running his business through a show-room under the name A.K. Motors. He had assured the appellant that the vehicle in dispute was under no encumbrance, the customs and other duties had already been paid. Being satisfied by the said assurance, appellant paid Rs.4,50,000 to respondent in the presence of one Amjad along with Rs.5,000 as a commission to respondent. Later on the Customs Authorities impounded the car because the customs duty was not paid. Prima facie the said facts do attract the ingredients of cheating. I have observed that the appellant has also filed civil suit against respondent No.2 for "the recovery of disputed amount but this conduct of the appellant is not sufficient to exonerate respondent No.2 of his criminal liability and thus in the circumstances a proper opportunity should have been provided to the appellant to prove his case against respondent. The impugned order passed by the revisional Court amounts to throttling the prosecution case at the initial stages depriving the complainant/appellant of his statutory right. The impugned order is not persuasive in nature and is not sustainable. Accordingly this appeal is allowed and while setting aside the impugned order case is remanded back to the trial Court for the decision of the case on merits. H.B.T./R-34/L Appeal allowed.