1988 P Cr (PLP)

S. 561-A--Penal Code (XLV of 1860). Ss. 406 & 420/34--Quashing of proceedings--Complainant advanced money to accused for purpose of partnership in purchasing a ship--Complaint against accused filed after a long delay of more than two years and no reasonable explanation given therefor--There was hardly any case of criminal intent otherwise and complainant utilising process of criminal Court for purpose of pressing accused to come out with money given by complainant for his share in purchasing the ship--Held, there existed no justification for filing complaint--Proceedings quashed. M.L. Shahani for Applicants. Ilyas Khan for Respondent. Zaheer Qureshi for the State. Date of hearing: 22nd September, 1987. This application under section 561-A of the Criminal Procedure Code is directed against the private complaint filed by the respondent No.2 against the applicants under section 406/420/34, P.P.C. and also against the charge, which has been framed by the A.C.M. concerned under section 406/420, P.P.C. or. 20th December, 1986. 2. Simple contention of Mr. M.L. Shahani is that on perusal of the complaint and the documents filed alongwith the same it becomes apparent that a coercive process of criminal code is being used to make the applicant pay back the money advanced by the respondent No. 2. 3. Before dealing with the contentions of the applicants, counsel, I would deal with the objections of Mr. Ilyas Khan for respondent No.2, who urged that this petition should be dismissed as another quashment application in respect of the same matter was dismissed on 27-4-1986 by another Hon'ble Judge of this Court, and further that this petition should not be entertained because the petitioner could have availed of the remedy available under section 439-A of Cr.P.C. First submission of the Counsel has no force because mere rejection of an application for quashment on the ground of default of the petitioner or his counsel does not conclude the matter as there is no consideration of merits. There is no provision in the Criminal Procedure Code, which prohibits an applicant from. moving second application for quashment. 4. In respect of the objection that an application under section 439(A) of Cr.P.C. could be filed before the Sessions Judge it is enough to state that section 439(A) is merely a discretionary remedy and a revision is not regarded as an adequate remedy in any manner. Moreover, section 439(A) is to be read alongwith section 435 of Cr.P.C. where the power is given to the Court to examine the correctness, legality or propriety of any finding. On the other hand, section 561(A) of Cr.P.C. empowers the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It appears to me that section 435 is limited in its scope while section 561(A) .is much wider in its scope. Mr. Ilyas Khan had submitted that the applicants had moved an application under section 249(A), Cr.P.C. before the Magistrate, which was dismissed by him on 14-3-1987 and, therefore, if the petitioners felt aggrieved, they could have moved the application under section 439(A), Cr.P.C. It is correct that if the petitioner wanted, he could also move the Sessions Court in this respect, but as I have observed earlier that 'the same is a discretionary remedy as the very word 'may' used in the said section clearly indicates. Moreover, it is mostly the material irregularities committed in the trial of the cases, which are usually covered under section 435 read with section 439(A), Cr.P.C. In the present case the main brunt of the petitioner is that mere perusal of the complaint alongwith its documents does not show any criminal case having been made out and, therefore, it was an abuse of the process of the Court. In these circumstances the present petition is held to be competent. 5. I have perused the order of the learned K.C.M. dated 14-3-1987, where he had dealt with the objections raised by the petitioners' counsel. In one part he has taken the view that it was not necessary to examine all the witnesses of the prosecution, if he can act on the result of the enquiry or investigation ordered by the Magistrate, who originally disposed of the case. And, therefore, he took the view that he could frame a charge on the basis of evidence already recorded earlier even though he had not recorded any further evidence. The said position in law does not appear to be incorrect because if the matter is sent to a new Magistrate by the revising Court for the purpose of dealing with a complaint then it would be open to the Magistrate to come to the conclusion of his own in respect J of the preliminary enquiry already conducted and, therefore, it cannot be completely necessary for him to record further evidence. I may state here that the complaint had been proceeded with earlier by a different Court and he had dismissed the complaint after having made some preliminary enquiry under section 203, Cr.P.C. However, on revision by the complainant the case was remanded to another Magistrate with a direction to give opportunity to the complainant to complete his evidence. The Magistrate without recording further evidence framed the charge as he was of the view that a prima facie case was made out. I would only observe that it would have been better if the Magistrate had recorded the rest of the evidence of, the complainant because the same would have been a proper compliance of the order of the revisional Court, but, strictly speaking the action by the Magistrate in framing the charge without recording further evidence is not illegal although one could say that it was not appropriate that a Magistrate should frame a charge against an accused on the basis of the same preliminary enquiry, which has not been found sufficient by another Magistrate having concurrent powers. I would however, leave this matter with these observations only. 6. The perusal of the complaint filed by the respondent No.2 shows that he has advanced Rs.3,35,000 to the applicants on the basis that the respondent No.2 would be made a partner and get their profit. It was further urged that the ship was to be purchased in the joint names. In para-12 it has been stated that the applicants were ab initio dishonest as they promised to enter into partnership on the basis of which the money was advanced to them, but they refused to enter into partnership and that the ship was purchased in the name of the firm of the applicants and not in the joint name. It was also urged in para.12 that the complainant had sent a final notice to the accused for the return of money, but the accused refused to accept legal notice. The said notice has not been produced by the complainant but four documents have been attached with the complaint. One is a bond executed by applicant No.2 evidencing receipt of Rs.3,60,000 from the respondent and promising to pay the same within 2 years or else to pay 15% interest. This was on 20th of April, 1982. These documents only show a loan and nothing beyond that. Then copy of agreement made by Zahoor & Sons with Messrs Shaheen Traders is filed, which shows that on 28-4-1982 the complainant had purchased a ship for Rs.3,70,000. It is common ground that Messrs Shaheen Traders is the name of the applicants' firm. Therefore, it is clear that the ship had been purchased by the applicants for Rs.3,70,000. In August, 1983, it would be about one year and four months after the purchase of the ship, the applicant No.2 gave notice through his counsel to respondent No.2 and one Hasan Ali that they had entered into partnership with Sohail Rehman in December, 1982 and partnership deed was executed and that an account was also opened in U.B.L. and cheque book was obtained and that the respondent No.2 was selling material of the ship after dismantling but no proper accounts were maintained. The partnership deed and the details of the ship mostly sold by the respondent No.1 were required for the purpose of accounts. 7. Respondent No. 2 replied to the said notice on 22-8-1983 through his counsel and alleged that Sohail had criminally misappropriated huge amount, which had been given to him on trust. It was denied that any partnership was executed and it was asserted that Sohail had requested respondent No.2 to lend him money so that the ship could be purchased and that a promise of handsome profit was made. It was further alleged that ship was purchased by the applicant No.2 in his own name, who started dismantling and selling the scrap and failed to pay back money so entrusted. About the bank account, it was asserted that the same had been got opened by deception and misrepresentation that all the money realised will be sent to the said bank account, but it was not done. It was again asserted in para-2 of the said notice that no partnership was ever entered into between the two parties, and that the allegation about the partnership deed is being made to cover the misappropriation as enquiry is being held by the F.I.A. against Sohail. It was further asserted that on being pressed the applicants paid Rs.62,000 to the complainant. Lastly it was asserted that the money had been entrusted to the applicants due to full confidence and trust. Finally Rs.2,98,000 being the balance was demanded within 7 days. Whatever happened between the parties between 22-8-1983 and 29-7-1984 is not known. However, on 29-7-1984, the complaint was filed. In the first instance, there is no reasonable explanation as to why the complaint has been filed after such a long delay of more than 2 years as the money had been advanced in April, 1982 and the ship was purchased by the applicants in their name in August, 1982 and the complainant having himself filed the agreement of purchase of the ship had known in or about August, 1982 that the ship was purchased by the applicants in the name of their firm. The very fact that the complaint is delayed by 2 years is sufficient to show that there was hardly any case of criminal intent otherwise the complainant would have immediately made a protest or, filed an F.I.R. or complaint but the same having not been done, the same throws a great deal of suspicion on the criminal case of the complainant. Moreover, para-12 of the complaint clearly shows that a notice had been issued by the complainant for simple payment of money and nothing else. Then again the bond shows that it was a mere loan of money for which the applicants have executed a proper bond in favour of the respondent No.2. Finally I observe that the whole basis of the complaint is that the money was advanced on the promise of a partnership but in 1983 after one year of the advance of money and the purchase of the ship, the respondent No.2 is taking up a clear position that there was no question of any partnership between the parties, therefore, the case of partnership set up in the complaint is a mere afterthought. It is an admitted position that Rs.62,000 have been paid back by the applicants to the respondent No.2 out of the loan advanced to them. I do not want to comment upon the position of the respective parties in respect of the civil liability vis-a-vis the existence or non-existence of the partnership because the applicants have been insisting that there is a partnership while the respondent No.2 has denied the partnership but also claimed that it was entitled to profits out of the sale of the ship's material, therefore, these matters would receive due consideration in civil suits, which have been filed by the parties or may be filed by them. It is enough for the purposes of this application that the process of criminal Court is being utilized for the purpose of pressing the applicants to come out with the money, which is advanced to them or, may be, the profits which had been made in the matter. There is however, no justification found for filing of the complaint by the respondent No.2 in view of what has been discussed above and, therefore, the proceedings under section 406/420 against the applicants pending in the Court of XV A . C . M. , Karachi (South) are hereby quashed. I would again caution that the observations made by me in this petition will not be relevant for the purposes of any civil proceedings between the parties. M.Y.H/A-275/K Proceedings quashed.