P L D 1969 Peshawar 156 (PLP)

SHAH ZAMAN BABAR, J.

‑ This is a petition under section 561‑A, Cr. P. C. for the quashment of criminal proceed ings pending against the petitioner under sections 419/420, P. P. C. in the Court of Syed Abid Hussain, Magistrate 2nd Class, Bannu.

2. Efforts were made by this Court to serve Khan Mirwali Jan respondent for attendance in this Court. The respondent did not appear on 17‑2‑

69. The Court observed that the complainant‑respondent is intentionally avoiding service and ordered that service on him be effected through publication in the Daily Shahbaz for 4 3‑

69. This has been done. Khan Mir Wali Jan respondent is not present today presumably he has lost interest in the proceedings.

3. Zari Gut Khan and Khan Mir Wali Jan are partners in timber business, at new Timber Mandi Bakka Khel Wazir, Tehsil and District Bannu, Muhammad Sharif petitioner has business dealings with the respondents since the year 1962. This is apparent from a letter dated 9‑8‑62 and receipt dated 31‑3‑64, placed on record by the counsel for the petitioner today.

4. Khan Mir Wali Jan lodged a complaint against Muhammad Sharif petitioner under sections 419/420, P. P. C. alleging that Muhammad Sharif used to purchase timber from him, that on 25‑10‑63 Muhammad Sharif purchased timber worth Rs. 3,500 out of which the latter paid Rs. 2,300 in cash and for the balance of Rs. 1,200 he issued cheque No. CAG 463718 on Habib Bank Ltd. The Mall, Lahore, and that after a few days he produced the cheque at the Bank but the Bank refused to cash it on the ground that Muhammad Sharif bad no balance in his account. This complaint was drafted on 15‑3‑68 and produced in the Court of Syed Abid Hussain, Magistrate 2nd Class, Bannu, on 19‑4‑

68. The Magistrate recorded the following statement of the complainant under section 200, C. P. C. :‑ "The complaint has been drafted at my instance and is correct. It also serves my purpose." The same day the Court ordered that the accused Muhammad Sharif be summoned for 10‑5‑

68. This summons (on file) was issued on 19‑4‑68 for 10‑5‑68 personal service of the summons was effected on Muhammad Sharif petitioner on 5‑5‑

68. Muhammad Sharif did not attend the Court on 10‑5‑68 and hence non‑bailable warrant (on file) was ordered to be issued for 3‑6‑

68. This warrant was issued on 10‑5‑

68. In the summons, mentioned above, the name of the complainant was not recorded This omission misled Muhammad Sharif to the belief that Zarigul Khan may have lodged the complaint. Muhammad Sharif, therefore, filed a petition (No. 176/68) under section 561‑A, Cr. P. C. for quashing the proceedings of this complaint on 13‑5‑68, arraying Zarigul Khan and the State as respondents. This petition was heard in motion on 16‑5‑68, and the Court ordered The file of the criminal complaint instituted by the respon dent in the Court of Syed Abid Hussain, Magistrate Ist Class, Bannu, should be requisitioned at an early date. In the mean while the proceedings before the Magistrate are stayed, and if any warrant has been issued, it should be recalled.

5. The Magistrate, however, sent the file to this Court. From the file Muhammad Sharif came to know that the com plaint had been lodged by Khan Mir Wali Jan. He, therefore, filed the present petition (Crl. Misc. No. 228 of 1968), requesting that the grounds of his previous petition be considered as grounds in this petition. The first petition was consequently dismissed in limine on 22‑7‑68.

6. The learned counsel for the petitioner argued that the proceedings in the complaint are liable to be quashed on the grounds : Firstly, that the Magistrate while taking cognizance of the offence under sections 419/420, P. P. C. on the complaint against the petitioner‑respondent has not reduced into writing the substance of the examination of the complainant, which was mandatory under section 200, Cr. P. C., and as such, an incurable illegality has been committed. Secondly, that the Magistrate accepted the written complaint of Khan Mirwali Jan complainant and proceeded to issue process without thoroughly shifting the allegations made against the accused to ensure whether a prima facie case for proceeding against Muhammad Sharif accused has been made out, and Thirdly, that the complaint discloses a civil liability rather than a criminal liability.

7. The learned Additional Advocate‑General contended that the proceedings of the complaint are not liable to be quashed at the stage when the accused petitioner has only been served for attending the Court.

8. The first contention of the learned counsel for the petitioner is misconceived. In Shamim v. The State and another (P L D 1966 S C 178) it has been held that failure to examine complainant under section 200, Cr. P. C. before issuing process is a mere irregularity curable under section 537, Cr. P. C. In the present case the statement of the complainant recorded by the Magistrate under section 200, Cr. P. C. wherein the contents of the complaint have not been repeated may amount to an irregularity but this irregularity does not amount to be a hindrance for taking valid proceedings against the accused petitioner. In the above‑noted authority it has been observed :‑ "The language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine qua non of valid proceedings, in all circumstances."

9. In Hashim 1laji Sharif v. Mir Khan Jan (P L D 1950 Bal. 7) it has been held :‑ One of the main objects of section 200, Criminal Procedure Code is to protect the public against false, frivolous or vexatious complaints filed against them in Criminal Courts and that Magistrate must not lightly accept written complaints and proceed to issue processes until they have thoroughly sifted the allegations made against the accused and are satisfied that a prima facie case has been made out against those who are accused of criminal offences. This observation was endorsed by the Supreme Court in Shamim v. State (P L D 1966 S C 178). In J. S. Daper v. Iqbal Qadir and another (P L D 1962 Penh. 167) at page 171, para. 14, observed :‑ "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 scrutinizing the complaint as to whether on the facts stated in the complaint any criminal offence is made out. The Magistrates 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 them selves 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." Thus the Magistrate in the present case, before issuing the summons against the accused‑petitioner has failed to satisfy his judicial conscience without carefully scrutinizing the complaint 8 as to whether on the facts stated in the complaint any criminal offence is made out.

10. The disputed cheque needs thorough scrutiny. The first date of issue on the cheque is dated 10‑9‑1963. The figures "10‑9" have been scored out and "25‑10" have been added. No slip of the Habib Bank limited, the Mall, Lahore has been enclosed with the cheque to ensure that the cheque was really produced at the Bank and its encashment was refused. No stamp of the Bank has been affixed on the cheque to show that it was produced before the Bank. Thus it is doubtful whether the complainant respondent had in fact produced the cheque at the Bank, as alleged by him in the complaint. Assuming, but without conceding, that the cheque was produced before the Bank and it was dishonored ; it will not burden the drawer Muhammad Sharif petitioner with the criminal liability. ‑In H. K. Shaw v. Suresh Chandra Mitter (A I R 1936 Cal. 324) it has been observed :‑ Where the accused gave a post‑dated cheque for certain goods delivered to him at an earlier date and got a receipt, but the cheque was dishonored Held : that the receipt was not a valuable security within the meaning of S. 30, and the accused was not guilty of cheating. The remedy of the complainant lay in a civil Court for breach of contract. A perusal of the contents of the complaint reveales that the parties had business dealings and in the present dispute; Rs. 2,300 out of Rs. 3,500 were paid in cash and for the balance of Rs. 1,200 the cheque in question was issued. Thus this complaint reveals a civil liability rather than criminal liability of the accused‑petitioner. In P L D 1962 Pesh. 167, at page 170, para. 11, the learned Judge has observed :‑ "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 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." In R. C. P. Guignard v. The State and another (P L D 1963 Kar. 868) it has been held that if a criminal case is entirely based on contractual liability, the civil Courts are the best forum for settling the dispute, and the circumvention of enforcing civil liability by criminal prosecu tion is abuse of the process of the Court.

11. I am of the view that the complaint proceedings against the petitioner in its initial stages can be quashed. In Zafar Niazi v. Riaz‑ud‑Din (P L D 1958 Lab. 738) it has been held :‑ Ordinarily, the High Court does not interfere at an inter mediate stage of a criminal proceeding, pending in a subordinate Court, unless there is some manifest and patent injustice apparent on the face of the proceedings and calls for prompt redress. In that case the accused was summoned by the Magistrate under section 420, P. P. C. on the bare statement of the complain ant which did not disclose any offence under that section. The High Court set aside the order summoning the accused and quashed the proceedings. In Rashid Akhtar Nadvi v. Major Irshad Ahmad Lodhi (P L D 1965 Lab. 492), it has been held :‑ "The power conferred on the High Court under section 561‑A, Cr. P. C. is to do real and substantial justice for the administration of which alone Courts exist. It is the inherent power of the High Court to interfere with the proceedings of the lower Courts at any stage when it finds that an abuse of the process of law is being carried on in the trial of the case, or that such an interference is necessary to secure the ends of justice. There may be a case in which the prosecution on the face of it is illegal. Proceedings in such a case can be rightly quashed even though they may be at the initial stages. There may be other cases where a bare statement of the facts of the case may be sufficient to convince the Court that no case is made out against the accused and if the case is allowed to proceed, it would be a mock trial. In such cases and in other cases where the admitted circumstances of the case do not constitute the offence, High Court can proceed to remedy the wrong forthwith and quash the proceedings."

12. In view of the facts and circumstances and the legal principle involved, I am convinced that no case is made out against the accused‑petitioner and if the case is allowed to l proceed, it would be a mock trial. I, therefore, accept the petition set aside the order dated 19‑4‑1968, whereby the accused was summoned, and the order dated 10‑5‑68, whereby a non‑bailable warrant was issued against the accused‑petitioner, and quash the proceedings in the criminal complaint pending against the accused‑petitioner in the Court of Syed Abid Hussain, Magistrate 2nd Class, Bannu. A. E. Petition accepted.