P L D 1963 (W (PLP)

6. The learned Magistrate, before whom this complaint was filed, recorded the statement of the complainant under section 200, Cr. P. C. This statement, when translated, would read as under: "I was appointed as sales representative by the firm of the accused for the purpose of selling Bedford R Vehicles which they had to sell to the Armed Forces. I was to receive commission. Through my efforts I had sold 600 vehicles in the year 1961‑62, the commission on which worked out to Rs. 1,62,

000. I made a demand for this amount from the accused and he putting me off on false promises ultimately refused to pay me the said amount . . . . . And today I have learnt that the accused has misappropriated Rs. 50,000 of my commission money and that he is likely to leave Pakistan for a foreign country within a day or two. He is staying in Palace Hotel at present. Whatever has been I stated in the complaint is true."

7. This statement under section 200, Cr. P. C. was recorded on 3rd May 1963, the day on which the complaint was filed. The Magistrate ordered process of bailable warrants to be issued on the same day and his order reads as under From the complaint and statement of the complainant, accused appears to have committed offence under section 406, P. P, C. as he is alleged to have misappropriated a substantial amount of the commission of the complainant. The com plainant further apprehends that the accused is a foreigner and is likely to leave Pakistan. Issue Bailable Warrants in the sum of Rs. 5,000 against the accused. Put off to 10‑5‑1963."

8. The learned counsel for the petitioner contended that the complaint which was filed for an offence under section 420, P. P. C. does not make out any case for the offence mentioned in it. The complaint makes it abundantly clear that it is founded upon an agreement entered into between the respondent and General Motors Overseas Corporation in the month of January 1960 pursuant to which the respondent was entitled to 1% commission on the business transacted by him. The complaint shows that the General Manager Mr. I. H. Chew who had acted for the Corporation has since left this country. The complaint also mentions that the petitioner is a successor‑in‑office of that General Manager and has nothing to do at all with the agree ment. Paragraph 11 of the complaint which has been re produced above shows that the respondent had transacted business on behalf of the Corporation on the misrepresentations made to him by it and its General Manager at the time of the agreement and that it is this misrepresentation which is made in the complaint a foundation for an offence under section 420, P. P. C. It is inconceivable in the extreme to hold a successor in‑office responsible for the alleged misrepresentation made by his firm or his predecessor‑in‑office. The complaint, therefore, obviously does not make out even remotely a case under section 420, P. P. C. for which a complaint was filed. The learned counsel for the respondent has also conceded this legal position and has stated at the bar that his case at the moment is not one for an offence under section 420, P. P. C. but is for an offence under section 406, P. P. C. The learned counsel for the respondent has also conceded that the complaint does not disclose any of the ingredients mentioned in section 405, P. P. C. nor is the complaint basis on which his case for an offence under section 406 is founded. According to him, the offence under section 406, P. P. C. has been disclosed in the statement made by the respondent before the Magistrate under section 200, Cr. P. C. The statement recorded under section 200, Cr. P. C. has already been reproduced above. The only part of that statement which probably refers to an offence under section 406, P. P. C. is the last part of it in which the respondent has stated "I have come to know today that the accused has mis appropriated Rs. 50,000 of my commission money." The learned counsel for the respondent argues that the learned Magistrate took cognizance of an offence under section 406, P. P. C. under section 190 (1) (c), Cr. P. C. by virtue of what is stated in the statement of the respondent recorded under section 200, Cr. P. C. and reproduced above. Section 190 (1) (c), Cr. P. C. reads as under "190 (1).‑Except as hereinafter provided, any District Magistrate or Sub‑divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence‑ (c) upon information received from any person other than a police‑officer, or upon his own knowledge or suspicion, that such offence has been committed." A bare reading of this section would indicate that a Magistrate empowered under this section can take cognizance of an offence upon information received from any person other than a police- officer or upon his own knowledge or suspicion that such an offence has been committed. The short question therefore that will dispose of this matter is whether the statement of the respondent, reproduced above, would show that an offence under section 406, P. P. C. has been committed. This section when it mentions that the Magistrate must be satisfied that an offence has been committed is not without any significance. Information received from any person or knowledge or suspicion of the Magistrate upon which he proposes to take cognizance under section 190(1)(c) is not to be vague in nature but has to definitely establish prima facie that an offence has been commit ted. The statement of the respondent reproduced above merely shows that he had learnt that the petitioner bad misappropriated Rs. 50,000 of his commission money. He has not stated in that statement as to whether he has any evidence available with him to substantiate this allegation. Even this allegation made in his statement under section 200, Cr. P. C. runs counter to what is stated in the complaint which originally was for an offence under section 420, P. P. C. In the complaint a case for total denial of the claim was made out. It was also stated that the petitioner and his firm had a dishonest intention ab initio to deprive him of his commission. The complaint was filed on 3rd May 1963 and it is on this very day that the statement of the respondent under section 200, Cr. P. C. had been recorded. Two counter theories appearing on the same day, one in the complaint and the other in a statement under section 200, Cr. P. C., are irreconcilable and no explanation seems to have been offered.

9. Apart from that what I have not been able to under stand is as to why the respondent had filed a criminal prosecution against the petitioner. The claim of the respondent is admittedly based on an agreement executed between General Motors Overseas Corporation and the respondent and it is therefore obvious, that if there is anything which is due to the respondent it is from the Corporation and not from the petitioner. Even if it be assumed that the petitioner had received Rs. 50,000 from the Corporation and had not paid to the respondent he could pursue his claim and recover his money from the Corporation The entire case of the respondent is based upon a contractual liability resulting from an agreement executed between the General Motors Overseas Corporation and the respondent. The best forum for settling such matters is always a Civil Court unless there are circumstances which make any one liable for criminal prosecution.

10. This application has been made under section 561‑A which reads as under "561‑A.‑Nothing in this Code shall be deemed to limit of affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." This section can be used by the High Court to prevent abuse other process of any Court or otherwise to secure the ends of justice. The High Court generally does not interfere with the case pending in the Subordinate Courts and has always desired the cases to be tried there and concluded, but if this rule were toll, be universally accepted lot of mischief is likely to emanate therefrom. The general tendency on the part of people here is to enforce civil liability by way of resort to a criminal prosecution which is not permissible under law. It is in these cases where the intention of the party is apparent on the face of the record that the party desires to enforce a civil liability by circumvented criminal prosecution that the High Court will always interfere. If the High Court does not prevent such misconceived and frivolous litigation it shall be abdicating its function of giving prompt redress to the party aggrieved. The Legislature in its wisdom being conscious of situations of this type had made a provision of it in section 561‑A, Cr. P. C. In my opinion, where a person is enforcing a liability which is entirely civil in nature by resorting to a criminal prosecution, he is doing something which is not warranted by law and if on his complaint any action has been taken and process has been issued it is obviously an abuse of process of Court. If authorities are needed for this proposition the following reported cases may be referred (1) Raghunath Puri v. Emperor A I R 1932 Pat. 72. (2) Heywood v. Emperor A I R 1942 Lah. 134. (3) Zafar Nfazi v. Riaz‑ud‑Din P L D 1958 Lah. 738. (4) J. S. Daver v. Iqbal Qadir P L D 1962 Pesh. 167.

11. The learned Additional Advocate‑General, who appeared in this case on behalf of the State, was also candidly of the view that the issue of process in this case by the learned Magistrate was clear abuse of the process of Court. In supporting the petition he has stated that the case of the respondent was of a civil nature as it had arisen out of contractual obligations of the parties. Agreeing with the view of the learned Additional Advocate‑General, I am of the opinion that process under section 406, P. P. C. issued by the learned Magistrate was not warranted by any material on record. I, therefore, accept the petition filed by the petitioner and quash the proceedings pending, against him in the Court of Mr. Muhammad Khan Junejo, A. C. M., Karachi. K. B. A./A. H. Proceedings quashed.