1988 PLP r (PCRLJ)

Jawahar A. Naqvi for Petitioner. Ch. Shaukat Mahmood Ramay for the State. Date of hearing: 3rd June, 1987. Through making this petition under section 561-A, Cr.P.C. Muhammad Siddique Sabir, petitioner, has prayed that criminal proceedings in a private complaint titled "Khawaja Muhammad Naeem Lone v. Rajab Ali and others" under section 406/4'20, P.P.C., pending in the Court of Mr. Abdul Razzaq, Magistrate First Class, Lahore, so far it relates to him, may be quashed.

2. The relevant facts giving rise to this petition briefly are that Rajab Ali, Proprietor Central Associates, 25-Lower Mall, Lahore, (hereinafter called accused No. 1) agreed to supply a "Toyota Coaster Ex-Saloon 17 Seater with A . C . 4800 C . C . (Gasoline) Model 1984-85" (hereinafter called vehicle) to Khawaja Muhammad Naeem Lone, respondent (hereinafter called complainant) in consideration of a sum of 17s.4,40,

000. The complainant paid half the price (Rs.2,20,000) to accused No. 1 in advance through Cheque No. CD-371469, dated 3-9-1984, drawn on the United Bank Limited, S.D. Vault Branch, Lahore, and accused No. 1 issued a receipt thereof. It was further agreed that accused No. 1 shall deliver the vehicle within a period of one hundred days from 3-9-1984, failing which accused No. 1 shall return the money. It is alleged that petitioner/ accused Deputy Manager of the Insurance Company known as "The Equity Medical and General Insurance Company Ltd. Lahore" at the instance of accused No. 1 and having received due premium from him executed "Performance Bond" on 2-9-1984 in favour of the complainant undertaking that if accused No. 1 would fail to perform the contract then he/his Insurance Company shall pay him Rs.2,20,000 on behalf of accused No.

1. The bond was valid upto 2-1-1985. The complainant, it is alleged, was informed telegraphically by accused No. 1 on 3-12-1984 that he would deliver the vehicle by the end of December, 1984. At this, the complainant approached the petitioner and obtained extension of Performance Bond for one month, i.e. upto 2-2-1985 but subsequently on 5-1-1985 the petitioner/ accused informed the complainant that the extension of the Bond granted earlier be treated as cancelled.

3. It so happened that accused No. 1 neither supplied the vehicle nor returned the money to the complainant which he had received as advance from him and likewise the petitioner/his Insurance Company, refused to pay the said amount to him as undertaken by him under the Performance Bond. The complainant was, thus, obliged to file instant complaint against accused No. 1, the petitioner and other office-bearers of petitioner's firm under sections 420, 408, 468, 471 read with section 34, P.P.C., in the Court of Ilaqa Magistrate, Lahore, on 22-5-1985. Learned Magistrate after holding preliminary inquiry summoned accused No. 1 and the petitioner, etc. as accused under section 406/420, P.P.C. by his order, dated 7-4-1986.

4. The petitioner and his co-accused Muhammad Anwar put in appearance before the trial Court while accused No. 1 and another accused have been declared as proclaimed offenders, by the trial Court.

5. The petitioner/ accused moved two applications under section 249-A , Cr. P. C. before the trial Court praying for his acquittal on the ground that the complaint does not disclose commission of any criminal offence by him as he only stood surety for due performance of the contract by accused No. 1; that the Performance Bond executed by him was on behalf of his Insurance Company and valid upto 2-1-1985 and that on expiry of the target date, petitioner Insurance Company was no more responsible for paying the amount in question to the complainant; and that at the most his or his Company's liability was of civil nature, therefore, he could not be prosecuted under section 406/420, P.P.C. Both the applications were, however, dismissed by the trial Court on 24-12-1986 and 10-3-1987, hence this petition.

6. I have heard learned counsel for the petitioner as well as for the complainant and also perused the documents appended with the petition relied upon, by learned counsel for both the parties.

7. Admittedly, the complainant placed an order with accused No. 1 on 3-9-1984 for supplying the vehicle and paid half of its price to him. The petitioner being a Deputy Manager of Insurance Company known as "Equity Medical and General Insurance Company Ltd." bound down his firm to pay Rs.2,20,000 to the complainant if accused No. 1 had failed to perform his contract, by 2-1-1985. The petitioner admits execution of the Performance Bond but stated that it was valid upto 2-1-1985 and that its extension till 2-2-1985 was obtained by the complainant through misrepresentation, therefore, he or his firm was not liable to pay the amount. The issuance of letter of extension is, however, admitted by the petitioner. Obviously there is neither an allegation nor evidence that the petitioner had forged any document. Likewise no entrustment of property whatsoever was made to the petitioner by the complainant, therefore, the question of its misappropriation or conversion to his own use in violation of any legal contract, does not arise, hence no offence of forgery or of) criminal breach of trust was made out against him.

8. As for the offence of cheating, I find that the complainant and accused No. 1 entered into a contract of supply of vehicle independently without any inducement made by the petitioner to the complainant to enter into the contract muchless fraudulently. He, of course, bound himself for paying back Rs.2,20,000 to the complainant in the event of failure of performance of contract by accused No. 1 by a certain date. Having refused to pay the amount in violation of the condition of Performance Bond executed by the petitioner to my mind amounts to simple breach of contract for which the complainant can, of course, sue him in civil Court. The criminal proceedings therefore, pending against the petitioner in the Court of Mr. Abdul Razzaq, Magistrate First Class, Lahore are calculated to harass him and clearly constitute abuse of process of Court, hence the proceedings in question so far as they relate to the petitioner are hereby quashed. S.G.D./M-509/L Proceedings quashed.