1975 P Cr (PLP)

4. On 25th April, 1973, Azim Gul, respondent No. 1, sent a notice to the petitioner, claiming inter alia, that the petitioner owed Rs. 25,688 to him and a reply was sent to the said notice through counsel on 1st May, 1973, repudiating the liability.

5. On 13th June, 1973, Azim Gul respondent No. 1, instituted a com plaint against the petitioner in the Court of Mr. Adil Khan, Magistrate Ist Class, Campbellpur, alleging that the petitioner had committed an offence under section 420 of the Pakistan Penal Code and in support of this com plaint the statements of the complainant (respondent No. 1), of Syed Riaz Shah, who was a witness to the agreement regarding the supply of shingle, Nisar Muhammad, witness of the delivery of the two post cheques, and Fiaz Ahmad Butt, Cashier of the Habib Bank Limited, were recorded. There after the petitioner was issued a process by the learned Magistrate to appear before the Court with the observation that the evidence recorded by him revealed that a prima facie case was made out against the petitioner.

6. In support of this petition, it is argued that the proceedings initiated by Azim Gul, respondent No. 1, was an abuse of the process of the Court, because an alleged civil liability was sought to be enforced through the process of the criminal Court. It was further argued that a liability merely on the ground of a cheque being dishonoured was a civil and not a criminal liability and no proceedings under section 420, P. P. C. could be founded on such an action. It was submitted that a post‑dated cheque was nothing more than an acknowledgment of debt and a promise to pay on a future date and that if this promise was not adhered to and broken, it did not constitute a criminal offence and the proceedings under section 420 P. P. C. were liable to be quashed. In this connection reliance is placed on Riasat All v. State (1970 P Cr. L J 445) in which it is stated A post‑dated cheque in fact is an acknowledgment of the debt by one of the applicants . . . . . . It is a promise to pay on a future date and a broken promise is not a criminal offence, though it may amount in business relations discreditable behaviour. The same view was expressed in Gul Jamal Khan v. Shah Jahan Khan (1971 P Cr. L J 943) wherein it was observed There are numerous decisions to support the view that the liability in the event of a cheque being dishonoured, is of civil and not of criminal nature. The criminal prosecution of the petitioners merely on the ground of the cheque having been dishonoured, is not justified.

7. In reply, the learned counsel for the complainant relied on Ghulam Muhammad Shah v. Chashlum Contractors (1973 P Cr. L J 548) in which the learned Judge while dealing with the contention of the petitioner that the matter involved was essentially of civil nature and, therefore, it should not be allowed to proceed in a criminal Court, for which proposition reliance was placed before him on a number of pre‑partition decisions, went on to observe as follows "In none of these cases it was held that no matter what the circumstances of the case may be whenever there is a question of (post‑dated) cheque involved the Criminal Court must stay its hands off. In my view, the question of guilt or otherwise of the accused even in cases involving (post‑dated) cheque, can and must be decided on the facts and circumstances involved in individual cases. The question of intention has to be determined after the evidence is led before the Court. I therefore, do not agree with the learned counsel that because cheques are involved in this case, therefore without giving an opportunity to the complainant to produce his evidence the pro ceedings must be quashed. Reference was made also to the judgment of the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan and others (P L D, 1967 S C 317) wherein guide‑lines were laid down by the Supreme Court in case where quashment. of proceed ings was prayed for. In his final reply the learned counsel for the petitioner referred to Ghulam Muhammad v. State (P L D 1971 Kar. 937), in which the judgment of the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan was taken note of and attention was invited to the following observations made in the said judgment :‑ I cannot but observe that the ingredients of offences under sections 420 403 and 406 are to a substantial extent available in most cases of breach of contract. Similarly a default by a borrower in repayment of a debt without admission of liability may also frequently partake of the character of an offence under section 406, P. P. C. There are numerous other instances of defaults in transactions purely civil in nature but which often appear to answer fully the ingredients of a criminal offence ; and with a little clever glossing over every such case could be converted into an earnest prosecution. It is here that a Court is called upon to act with circumspection and to exercise the utmost care and caution before it is persuaded to employ its process for compelling attendance. This duty is heavier in private complaints which relate to transactions apparently civil in nature. The tendency to view a criminal action as a handy means to constrain a person's conduct cannot be under‑scored . . . . . . The difficulty for the Court itself often arises on account of the overlapping nature of a civil and criminal cause. But yet with a prudent application of mind it should be possible to draw a distinction between the two. It is perhaps well to remember that the word "crime" suggests that not only should a man have brought about the forbidden actus but also that the line of conduct which he had voluntarily continued to that conclusion was inspired, or at least accompanied, by mens rea. The accused, in other words, shall have been actuated by a legally reprehensible attitude of mind. Coming to the case of Ghulam Muhammad, it was observed as follows:‑ " . . while frowning on an excessive exercise by the High Court of its jurisdiction under section 561‑A, Cr. P. C. for the quashing of criminal proceedings, the foregoing principle of approach was reiterat ed by the Supreme Court and the decision of the High Court in R. C. P. Guignard v. The State and another was approved to the extent that it clearly recognised that the High Court will interfere in the exercise of its inherent jurisdiction if it was satisfied that the resort to criminal proceedings "is doing something which is not warranted by law."

8. After giving my full consideration to all the relevant facts I consider that the circumstances of this case are nearer to the circumstances which obtain in the cases, reported as 1970 P Cr. L J 445 and 1971 P Cr. L J 943. 1n this case, I observe that only two days after the issuance of the post‑dated cheques, the petitioner had lodged a report in the Police Station that the cheques were obtained from him illegally and should be got returned. There after, in reply to the notice issued to the petitioner, the same position way reiterated in the reply sent on his behalf on 1st May, 1973. The factum of the liability to pay was also controverted. In these circumstances, the instructions issued to the banker by the petitioner to stop payment cannot be construed as the work of a guilty mind and the liability, if any can only be enforced by respondent No. 1 through an action before the civil Court. In these circumstances, I am inclined to accept this petition.

9. The result is that the proceedings initiated by Azim Gul, respondent No. 1, pending in the Court of Mr. Adil Khan, Magistrate First Class, Campbellpur, are held to be an abuse of the process of the Court and are hereby quashed. Proceedings quashed.