1987 PLP 1750 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioner who is being prosecuted on a criminal complaint filed by the respondent under section 420/406, P.P.C. seeks leave to appeal against an order of the Lahore High Court dated the 10th of December, 1983 whereby his petition under section 561‑A, Criminal Procedure Code seeking the quashment of the proceedings, was dismissed. The allegations contained in the plaint show that three years before the filing of the complaint on 20‑2‑1983, the petitioner had been handed over a sum of Rs.60,000 or its equivalent in Kuwait by a son of the complainant on the express understanding that it would be delivered to the complainant in Pakistan. On the failure of the petitioner to discharge the trust the respondent addressed an application to the Superintendent of Police, Gujranwala, on 3‑1‑1982 making a grievance of it. The petitioner thereupon instituted a civil suit on 17‑1‑1982 alleging that the respondent and another were bent upon to black mail the plaintiff and for that reason they have moved the police authorities by false and frivolous applications against the plaintiff wherein they have alleged many false allegations against the plaintiff. On account of this act, it was claimed that the petitioner had suffered a loss in the shape of mental shock and lowering of his reputation in the eyes of his friends and well-wishers for which he claimed damages of Rs.20,000 from the respondent. He also sought an injunction restraining the respondent from making illegal, unlawful, mala fide and false applications against the plaintiff before any authority and also from teasing, terrorising and dishonouring the plaintiff and lowering his reputation in the eyes of his friends and general public. It was alleged in the criminal complaint filed on 20‑2‑1983 by the respondent that subsequently the petitioner on intervention of other members of the brotherhood undertook to pay the amount in instalments of Rs.500 but after paying two instalments, he stopped making the payments. It was, therefore, alleged in the complaint that the petitioner had been guilty by his conduct of cheating and criminal breach of trust in respect of the amount entrusted to him. The contention of the petitioner in the High Court was that in view of the allegation of the respondent himself that the petitioner had acknowledged the liability and that he had undertaken to discharge the same in instalments, the whole transaction became one of civil nature and criminal prosecution under sections 406 and 420, PPC was malicious and untenable. The High Court disposed of this contention of the petitioner in the following words‑ "In my opinion, it is a question for the trial Court to consider after assessing the evidence whether petitioner's agreement to pay the money in instalments amounted to an admission of having misappropriated the money entrusted to him or would it be a civil nature matter. I would, therefore, not like to go into this aspect of the case at this stage. This petition is dismissed. The learned counsel for the petitioner has before us addressed the same argument as was put forward in the High Court i.e. that the acknowledgment of the liability and the undertaking to discharge the same made the transaction as one of a civil nature and prosecution under section 420/406, PPC was misconceived. The question whether an act of a person is criminal or civil depends primarily on his intention. The intention is to be gathered from all the attending circumstances including the transaction itself. It cannot be laid down as principle of law that simple acknowledgment of liability to pay converts what is otherwise an offence under section 420/406 PPC into a claim of a civil nature. In order to gather the intention, the attending circumstances and the conduct of the parties has to be examined in the context of the transaction itself. This necessarily requires evidence or material. The view taken by the High Court and the stage at which it had been taken appears to be eminently justified and we do not consider this case at all a fit one for interference by this Court. Hence, leave to appeal is refused. M.I./M‑149/S Leave refused