P L D 1964 (W (PLP)

Date of hearing : 5th November 1963. This is an application under sections 435, 439 and 561‑A of the Criminal Procedure Code for quashing the complaint filed in the Court of the S. D. M., Karachi against the petitioner on 16th September 1963. The fasts briefly giving rise to the present application are these One Masood Ahmad Shahid, Director of Messrs Shakil Express Ltd., Marriot Road, Karachi filed a complaint on 14th September 1963, under section 420 of the Penal Code against B. D. Cayford, Manager of the British Overseas Airways Corporation, Finlay House, Karachi. This complaint was dis missed for default thereafter the complainant filed another complaint on 16th September 1963. The facts, as would appear from the complaint, are these : The applicant, it is alleged, approached the complainant in 1958 to give him business on commission basis. It was agreed that the applicant would pay 7 per cent. as commission on the business given by the firm of the complainant. The complainant acting on this representation gave business over a period of five years to the tune of Rs. 73,

071. The com mission dues came to Rs. 5

112. It is alleged that whenever the complainant demanded his Firm's dues the applicant acknowledged his liability to pay but put off the payment on the ground that according to the International Air Transport Association Rules the same could be paid only after the complain ant's Firm was formally approved as Travel Agents by the aforesaid Association. It is further mentioned that the complainant's Firm applied to the said Association for being approved as Travel Agents but the same was turned down. The complainant subsequently came to know that it was because of the opposi tion of the applicant and his Firm that the complainant could not be approved as Travel Agents by the Association. Lastly it is said in para. 11 of the complaint that "it is evident from the conduct of the accused, namely, the continued opposition of the complainant Firm's application for approval by I. A. T. A. as Travel Agents that the intention of the accused were ab initio mala fide and no commission was intended to be paid to the complainant's Firm."

2. The learned Magistrate, after recording the statement of the complainant on 16th September 1963, issued summons to the applicant directing him to appear in his Court to answer the said charge. The applicant made an application through his counsel that the complaint did not make out an offence within the meaning of section 190 of the Criminal Procedure Code so as to give jurisdiction to the learned Magistrate to proceed with the complaint. The learned Magistrate disposed of the application in one sentence, namely, "This application is rather premature and, is therefore, rejected." The learned Magistrate passed this order on 19th October 1963. The applicant thereafter moved this Court on 23rd October 1963, for quashing the proceeding pending before the learned Magis trate on the ground that the proceeding initiated against the applicant amounts to an abuse of the process of law.

3. The inherent power of the Court under section 561‑A, Cr. P. C., though wide, is exercised cautiously, but wherever the Court is satisfied that certain criminal proceeding initiated will lead to the abuse of the process of the Court, it has exercised its inherent jurisdiction and quashed the proceedings. In this connection reference may be made to the case of Mahmoodul Hassan v. Imtiaz Khan and another (P L D 1963 Lah, 481) and the case of R. C. P. Guignard v. The State and another (P L D 1963 Kar. 868). What has to be determined is whether the proceeding initiated under the complaint can be said to be an abuse of the process of the Court.

4. Mr. Brohi, the learned Advocate for the applicant, very strenuously contended that on the facts disclosed in the complaint no offence under section 420 of the Penal Code is made out. In this connection it would be necessary to repro duce section 415 of the Penal Code and also sections 24 and

25. The latter two sections deal with as to what is meant by "dishonestly" and "fraudulently". Section 415 runs as under

415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Sections 24 and 25 run as under

24. Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, !s said to do that thing "dishonestly."

25. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. On the facts given in the complaint the question is whether the applicant caused the complainant to believe what was false, namely, whether he made a false representation and thereby secured work without any intention to pay the commission. It is admitted by the complainant that the applicant always acknowledged the liability to pay. The only condition which he put was that the complainant should get himself enrolled as Travel Agents with the I. A. T. A. On these admitted facts I have no doubt, in view of the law reproduced above, that no case of cheating could be made out.

5. The complainant has, however, alleged that he has come to know through a reliable source that it was because of the efforts of the applicant and his Firm that the com plainant could not be enrolled as Travel Agent. From this act of the applicant the complainant came to the conclusion that he had no intention to pay the commission from the very beginning. I have given careful consideration to this assertion of the complainant and have come to the conclusion that this would not constitute an offence. The main consideration would be whether in 1958 when, it is alleged, the applicant asked for the business he had any such intention as would constitute an offence under section 420 of the Penal Code. I have no doubt that the applicant cannot be said to have the requisite intention in 1958 or for that matter at any time which would constitute the offence under section 420 P. P. C. It was in the knowledge of the complainant since 1953 that he could not be paid the commission unless he was enrolled as an agent of the I. A. T. Association. This would appear from the plaint of the suit which he has filed in the Civil Court at Karachi. The complainant has not denied the allega tions made by him in the plaint. It would appear from the plaint that the complainant was applying from time to time unsuccessfully since 1953 for enrolment as an agent of the Association, In view of these facts which were in the knowledge of the complainant it cannot be said that the applicant had any such intention. The applicant knew that he could not get the commission without enrolment. It would be too much to infer from the fact of the applicant objecting to the enrolment of the complainant even if this fact is true, to conclude that the applicant had an intention to deceive the complainant so as to defraud had him an of this commission. The best complainant can be said in favour of the complainant is that the applicant was instrumental in the rejection of the application of the com plainant. This would not mean that the applicant had no intention to pay the commission. The applicant may have good grounds as a member of the I. A. T. A to resist the application of the complainant to be enrolled as a Travel Agent. It is a well settled principle of criminal administration` of justice that wherever two explanations are possible, the one in favour of the person charged with an offence should b re accepted. In this case, as I have already said, the possibility of the applicant having resisted the application of the com plainant on good grounds cannot be ruled out. In that view of the matter the complaint, as it stood, could not result in the conviction of the applicant. I have, therefore, come to the conclusion that the initiation of the proceeding under the complaint filed by Masood Ahmad Shahid is an abuse of the process of the Court.

6. I cannot dispose of this matter without making certain observations. It is true that the facts alleged in the complaint do not make out an offence. The fact, however, remains that the applicant or his Firm has taken business from 1958 to 1962 for five years. The applicant and his Firm are morally bound to carry out their commitment. It is for them to see and find out a way to meet their commitment. The complainant must have filed the present complaint in sheer exasperation, though this is no justification in law. I have no doubt that the applicant and his Firm, which is a well known Inter national Firm, will find out a way to meet their liability, more so when the liability is acknowledged. With these obser vations, I would quash the proceeding giving rise to the complaint filed by Masood Ahmad Shahid on 16th September 1963. S. Q./K. B. A. Proceedings quashed.