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Ghulam Ahmad Sofi Vs. Kh. Ghuiam Moh'd (09.07.1963 - JKHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1964CriLJ374
AppellantGhulam Ahmad Sofi
RespondentKh. Ghuiam Moh'd
Excerpt:
- .....only in july i960 and if for any reason, the timber was not in a position to be floated by that date, the contract would stand cancelled and the petitioner will return the amount of money received by him from the respondent. it was further stipulated that it was for the respondent to obtain the necessary permission from the forest department for lifting of the timber. there was another provision by which the respondent was given a clear remedy for damages against the petitioner in case there was any breach of contract on the part of the petitioner.(4) it is common ground that due to scarcity of water, the timber could not be floated in july i960 which was the crucial date fixed in the contract. this being the position the contract spent its flee and there was no obligation on the part.....
Judgment:
ORDER

Syed Murtaza Fazl Ali, J.

(1) This is an application for quashing proceedings Under Section 420 of the Ranbir Penal Code taken against the petitioner.

(2) The respondent filed a complaint before the City Magistrate Srinagar alleging that there was an agreement between the petitioner and the respondent under which he was to sell a contract it timber for a consideration of Rs. 60,000/-. It was alleged that the complainant paid the entire consideration to the petitioner, but is spite of that he did not sell the contract to the respondent and hence tree petitioner was liable for an offence Under Section 420, R. P. C.

(3) I have perused the complaint, the statement of the complainant as also the agreement which is the basis of the complaint. The agreement clearly recites that the sale of the contract was to be effected only and only in July i960 and if for any reason, the timber was not in a position to be floated by that date, the contract would stand cancelled and the petitioner will return the amount of money received by him from the respondent. It was further stipulated that it was for the respondent to obtain the necessary permission from the forest department for lifting of the timber. There was another provision by which the respondent was given a clear remedy for damages against the petitioner in case there was any breach of contract on the part of the petitioner.

(4) It is common ground that due to scarcity of water, the timber could not be floated in July i960 which was the crucial date fixed in the contract. This being the position the contract spent its flee and there was no obligation on the part of the petitioner to grant transfer of the lease in favour of the respondent. The only obligation on the petitioner was to return the consideration. In this circumstances, it cannot be said that at the titne when the contract was entered into, the petitioner had an intention to cheat. This intention any have developed later on when the petitioner1 realised that the date of floating as fixed by the contract having been passed, he was at liberty to transfer the lease to somebody else. As the complainant had a clear remedy by way of damages against the petitioner, under the contract itself, I do not see how he has chosen the forum; of criminal Court to vindicate his grievances. On a careful consideration of the materials furnished by the complainant, I am satisfied that no case under Section 420, R. P. C. or any other section has been made out against the petitioner.

(5) I might observe that the magistrate should be very careful before issuing process against the accused on the basis of contracts where purely civil rights are involved. Summoning of an accused Under Section 202, Cri. P. C. is not an automatic formality to be observed the moment a complaint is filed before a magistrate. It is the duty of a magistrate to apply his mind to the complaint, and the statement of the complainant and he should order summoning of the accused only if sufficient grounds for proceeding with the master are made out. The Legislature by using the words 'Sufficient grounds for proceeding' has laid a rule of prudence so as to save an accused person from unnecessary harassment at the hands of a prosecutor. The Courts should never allow themselves to be converted into instruments for vindicating the civil rights of the parties. A magistrate, therefore, should bear these principles in mind while considering the complaint which prima facie involves a civil right. Let a copy of this judgment be sent to the Sessions Judges of Jammu and Kashmir to be circulated amongst the subordinate magistrates.

(6) For these reasons, therefore, the application is allowed and the proceedings pending against the petitioner are quashed. The petitioner will now be discharged from his bail bonds.


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