P L D 1955 Sind 53 (PLP)

CONSTANTINE, C. J.‑The opponent in this case filed a complaint under section 420 P. P. C. It said that he entered into a contract on 27th January, 1953, with the Sutlej Cotton Mills through their Karachi, agents Rochaldas & Co., for the purchase of 50 bales of Grey Cotton Cloth and made a deposit of Rs. 5,

000. The complaint stated that accused 1, Rochaldas, signed the contract and then stated accused 2, 3, and 4 were in charge of the management of M/s Sutlej Cotton Cloth Mills Ltd. The complaint also stated that the contract was signed at Karachi at the office of accused 1, where also at present all the accused are staying. There is not a word throughout the complaint or in the verification that the present applicants accused 2, 3, and 4 were concerned in the making of this contract or in the acceptance of Rs. 5,

000. The complaint stated that after receiving the deposit amount, accused 2 to 4 denied the existence of the contract as‑ well as the fact of payment of deposit amount of Rs. 5,

000. The only documents presented with the complaint were the contract and a telegram. This telegram did not state that receipt of Rs. 5,000 was denied. The complaint then said from the telegram it is clear that the accused have cheated to the extent of Rs. 5,

000. The verification 'contained little more ; it said that the contract was entered into, the complainant demanded cloth from the accused and then demanded money, but all the three accused refused to give cloth as well as to return the money. He then sent a telegram whereupon they replied that they have not entered into any contract. The wording of the telegram was in fact " refer your telegram 16th May. Facts denied. We have no contract‑ with Pak. Textile Processing Mills". Upon this, the 5th A. C. M. Mr. M. A. Naqvi, ordered "offence, if any, may fall under section 420 P. P. C." and he ordered bailable warrants to issue against the accused. To state that an offence, if any, may fall under section 420 P. P. C. in our opinion discloses a wrong appreciation of the Magistrate's duty in issuing process. It is for the complainant to state a case showing that an offence has not merely may have occurred. Neither in the complaint nor in the verifica tion is there the slightest allegation that at the time of receipt of Rs. 5,000, the accused intended to deceive the complainant, the Magistrate has overlooked this elementary point. This was obviously one of the clearest cases where an attempt has been made to convert a civil case into a criminal case. The accused did not appear and instead their counsel Mr. Suhrawardy made an application supported by affidavits of the accused. They have stated various facts. We are really not concerned with that application, but here again the learned Magistrate does not adopt the position that a Magistrate should adopt. It is not right that persons against whom no criminal offence is disclosed should be dragged to Court; and it is not correct to state that if accused are certain of their ground they should appear in Court to expedite the proceedings of the Court and should examine the complainant, cross‑examine and put in documents upon which they rely, It is the Magistrate's duty to see that accused persons are not harassed without need. We therefore admit the application and quash the proceedings against the four accused. A. H. Proceedings quashed