Shaukat Zaman vs Muhammad Farakh Khan

2012 M L D 1306

[Peshawar]

Before Qaiser Rashid Khan, J

SHAUKAT ZAMAN---Petitioner

Versus

MUHAMMAD FARAKH KHAN and another---Respondents

Criminal Miscellaneous Quashment Petition No.213 of 2011, decided on 6th April, 2012.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Penal Code (XLV of 1860), Ss. 419/420---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating---Quashing of F.I.R.-- -Dispute over repayment of loan---Complainant (respondent) had given a loan to the accused (petitioner) in respect of which the accused allegedly executed a pro note but refused to repay the said loan---Contentions of accused were that allegations made in the application of the complainant did not make a cognizable case under Ss. 419 and 420, P.P.C, and that a civil dispute had been made the subject of an F.I.R. against the accused---Validity---Matter had credentials of a civil dispute and even the police had stated in its final report that there were business dealings between the parties---Application was made to the police after a period of one year and nine months had lapsed since the execution of the alleged pro note---Complainant had every right and opportunity to approach the civil court for redressal of his grievance in the form of a recovery suit rather than harassing the accused through present F.I.R.---Continuation of further proceedings would tantamount to the abuse of the process of the court---Quashment petition was accepted and F.I.R. registered against the accused was cancelled by the High Court with the observation that practice of portraying a civil liability as a criminal liability and in the process harassing the alleged delinquent to return the loan was unwarranted under the law.

Muhammad Shoeb Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Muhammad Khursheed Qureshi for the Respondent No.1.

Date of hearing: 6th April, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Through this petition filed under section 561-A Cr.P.C, the petitioner, Shaukat Zaman, seeks the quashment of case F.I.R. No.722 dated 24-10-2011 registered under sections 419/420, P.P.C. at Police Station, City District D.I.Khan.

2.Brief facts of the instant case are that complainant/respondent No.1 moved an application against the petitioner to the local police that he had given a loan of Rs.5,50,000 to the petitioner and in respect of the abovementioned loan a pro note was allegedly executed on 24-12-2009 by the petitioner but he refused to repay the said loan. His report was entered in daily diary No.23 dated 17-9-2011 and the local police after conducting inquiry under section 156(3), Cr.P.C. registered the ibid case F.I.R.

3.Learned counsel for the petitioner argued that the F.I.R. has been registered by the respondent No.1 against the petitioner malafidely and in connivance with the local police; that the allegations made in the application of the complainant do not make out cognizable case under sections 419/420, P.P.C.; that despite the final report the police still registered F.I.R. against the petitioner; that a purely civil dispute has been made the subject of an F.I.R. against the petitioner.

4.Conversely, the learned counsel for the respondent No.1 argued that the petitioner has refused to pay a loan Rs.5,50,000 obtained by him from the respondent No.1, and has thus cheated the latter despite executing a letter of pro note and as a last resort the respondent. No.1 submitted an application before the local police against the petitioner culminating in the registration of an F. I. R.

5.The learned D.A.G. candidly stated that no cognizable case is made out in view of the facts of the case.

6.Arguments heard and record perused.

7.From the bare perusal of the alleged pro note executed by the petitioner on 24-12-2009 in favour of respondent No.1 in respect of the alleged loan amount, the matter had the credentials of a civil dispute between the parties inter se. Little wonder that despite the final report dated 28-9- 2011 prepared by A.S.-I., Police Station City D.I. Khan wherein, in unequivocal language, it has been reported that there was business dealing between the petitioner and respondent No.1, still the F.I.R. ibid was registered against the petitioner which can at best be described as intriguing. Another interesting feature of the case is that though the pro note was allegedly executed on 24-

12-2009, but an application was made to the police by the respondent No.1 on 13-9-2011 i.e. after a period of one year and nine months. It goes without saying, that of late it has rather become a practice as has been observed in certain cases that in order to resolve a purely monetary dispute, criminal proceedings are being resorted to by way of arm twisting tactic. In the case in hand too, if at all the alleged pro note was executed by the petitioner in favour of respondent No.1, then the respondent No.1 had every right and opportunity to approach the civil court for the redressal of his grievance in the form of a recovery suit rather than harassing the petitioner through the F.I.R. in question. Such practice whereby a civil liability is portrayed as a criminal liability and in the process the alleged delinquent is piqued and harassed so as to make him cough up the loan amount is unwarranted under the law. Thus the continuation of, further proceedings would tantamount to the abuse of process of the court and nothing more.

8.Thus by exercising the inherent powers of this court conferred by section 561-A, Cr.P.C. the instant quashment petition is accepted and the F.I.R. No.722 dated 24-10-2011 registered against the petitioner, is cancelled and any proceedings pursuant thereto are quashed.

M.W.A./166/P Petition accepted.