P L D 1862 (W (PLP)

The petitioner was an employee working as Manager in the Firm of Messrs Perviz Merwanjee Bomanjee Dalal of Karachi of which Firm Mrs. Perviz Merwanjee Bomanjee Dalal was the sole proprietor. The Peshawar Motors Limited through Iqbal Qadir, Managing Director, through their brokers at Karachi entered into Forward Contracts with the said Firm on different dates, for supply of Bonus Vouchers. Some of these contracts were fulfilled by the Firm. The petitioner left the service of the Firm in which he was employed before the time fixed for delivery of the Bonus Vouchers on the two remaining contracts between the Firm and the complainant Company. The Karachi Firm appears to have run into difficulty and could not honour some of the contracts entered with some of its creditors, Includ ing the complainant Company. The complainant Company along with other creditors of the Firm joined hands and received certain payments towards the advances made by them.

3. In June 1961, the complainant went to Karachi and made efforts to force the petitioner to either himself make the payment of the balance of the deposit, or pay it jointly with his employee. Since the petitioner was no longer in the Service of the Firm, he refused to make payment. The complainant on 26th July 1961, instituted a complaint against the petitioner and Mrs. P. M. B. Dalai, under section 420/34 P. P. C., on the allegation that the petitioner and his employee bad assured them of the soundness of the financial position of the Firm and in pursuance of that assurance made advances to the Firm for supply of the Bonus Vouchers for the purchase of Bed Ford Truck Chassis.

4. Qazi Muhammad Afzal Khan, Magistrate 1st Class, Peshawar, issued summonses to the petitioner and his co-accused, but the latter had left Pakistan having gone abroad on 21st August 1961. The petitioner in response to the summons in company of his attorney, Mr. S. S. Sheikh (one of the leading Advocates of Karachi) attended the Court of the said Magis trate on 30th August 1961, at 8 a.m. The case was called out several times, but ultimately at 9 a.m. when the case was called out for the last time the Magistrate dismissed the complaint in default under section 259, Cr. P. C.

5. The complainant filed a revision against the order of dismissal in the Court of District Magistrate, Peshawar, and also filed a fresh complaint against the petitioner and Mrs. P. M. B. Dalal, on 28th September 1961. Processes were again issued in the name of the accused and the petitioner appeared once again on 21st November 1961, this time before Mr. Muhammad Din Khan, Magistrate 1st Class, Peshawar (successor in office of Qazi Muhammad Afzal Khan), but the complaint was filed by the said Magistrate in view of the revision petition having been filed by the complainant in the Court of the District Magistrate.

6. Sheikh Muhammad Hussain, District Magistrate, Peshawar, vide his order dated 13th December 1961, without serving any notice on the petitioner, accepted the revision petition and ordered the Magistrate to proceed with the trial of the complaint. The operative part of the order was to the following effect :- "The offence seems to be cognizable offence and the lower Court has incorrectly dismissed the complaint under section 259 Cr. P. C. The case is therefore remanded to the Court concerned for trial afresh and passing necessary orders on merits. The petition is accepted and the order of the lower Court is set aside."

7. The petitioner has assailed the order of the District Magistrate passed on revision on various grounds, including the ground that "the complaint did not disclose any offence as it is a civil liability". The petitioner filed an affidavit along with the revision petition, narrating the facts giving rise to the revision petition as mentioned above. The complainant was directed to file a written statement and a counter-affidavit in regard to the facts alleged the affidavit filed by the peti tioner. He was also directed to file the copies of the two agreements in regard to the supply of Bonus Vouchers which formed the basis of the complaint. The complainant has filed the copies of two agreements and also filed a written statement and the only allegation made against the petitioner is to the effect that "the petitioner knew, the integrity of the Firm at the time of entering into contract which was never disclosed to the respondent". The complainant admitted that after waiting for a considerable time he went to Karachi and with his own efforts collected about 6y of the deposits from debtors of the petitioner's Firm in Bonus Voucher business.

8. Mr. Muhammad Afzal Khan, the learned counsel for the petitioner, vehemently argued that on the facts stated it the complaint no criminal offence, was made out and at best it was a breach of a contract and the only remedy open to the complainant company was to seek redress in a Civil Court but with a view to intimidating and coercing the petitioner criminal complaint had been filed which was a manifest abuse of the process of the Court, and as such, this Court, in exercise of its powers under section 561-A, Cr. P. C., should quash the proceedings.

9. Malik Abdul Latif, the learned counsel for the complainant-respondent, on the other hand, argued that the powers conferred on this Court under section 561-A, Cr. P. C. should be sparingly used, and, at any 'rate, it should not be used at this stage when the complainant had not led evidence in support of the complaint.

10. Syed Ghazanfar Ali Shah Bukhari, Additional Advocate-General, on behalf of the State, with commendable frankness conceded that on the facts stated in the complaint no criminal offence was made, and that the complainant had taken criminal proceedings in the hope that the petitioner and his employee would pay the amount in dispute rather than face a criminal trial.

11. After giving the arguments addressed at the Bar my earnest consideration, I am clearly of the view that on the facts stated in the complaint no criminal offence is made out at all/ and the sole purpose of launching a criminal complaint against the petitioner and his employee was to coerce, harass and humiliate the petitioner and his employee to make payment A of the balance of the deposits without having recourse to civil litigation which unfortunately is both cumbersome and expensive. The tendency to use the Criminal Courts for enforcing a civil claim is highly improper; and in the present case, I am constrained to say almost amounts to blackmail.

12. As already stated the petitioner was dragged twice all the way from Karachi to Peshawar with a leading Advocate of Karachi and then the complainant and his counsel intention ally absented themselves on the date of the first hearing knowing fully well that in case the complaint was dismissed in default, they could institute a fresh complaint which they did institute and also went up in revision against the order of dismissal to the District Magistrate. I need not labour the point at length, but would content myself by borrowing some of the pithy observa tions of Newsam, J. in the decision of M. M. S. T. Chidambaram Chettiar v. Shanmugham Pillai (A I R 1938 Mad. 129), when he observed:- "The inherent jurisdiction of this Court to pass any orders necessary to prevent abuse of the process of any Court is not questioned and indeed has been clearly expressed in section 561-A, Criminal P. C. Since prevention is always better than cure, the obligation to prevent specious and spiteful criminal, prosecutions for actions which, though strictly dishonourable, yet do not amount to crimes, is one that must never be shirked. In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal and it is am abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises." 13 For all the foregoing reasons, I accept the revision acting under section 561-A, Criminal Procedure Code, and quash the proceedings and dismiss the complaint not against the petitioner alone, but also against Mrs. P. M. B. Dalal, though she has not formally moved the Court, for to allow proceedings against her to continue would be a manifest abuse of the process of Court.

14. Before I part with the case I would like to make some observations for the benefit of the Magistrates while dealing with private complaints not to allow their judicial conscience to be so easily moved as in the instant case by automatically issuing summonses against the accused without carefully scrutinising the complaint as to whether on the facts stated in the complaint any criminal offence is made out. The Magistrate before issuing processes to the accused in private complaints are under statutory obligation as contemplated by section 202 of the Criminal Procedure Code to satisfy themselves "for the purpose of ascertaining the truth or falsehood of the complaint " and they should never permit civil litigation to be converted into criminal litigation. K. B. A. Petition accepted.