2011 PLP 1825 (YLR)

The petitioner society, who is the complainant in F.I.R. No.155 of 2006, registered at Police Station Aziz Bhatti for offences under sections 420/408 PPC, has brought into question the order dated 26-3-2010, whereby XVIth Judicial Magistrate, Karachi East has dismissed the petitioner's/complainant's application for return of the challan in the above case and for its submission before the Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 ("The Ordinance"). The learned counsel for the petitioner submits that the act of respondent No.2, complained of through the above F.I.R., clearly falls within the meaning of "Scheduled Offence" as defined by section 2(d) of the Ordinance. The learned counsel refers to the said section, which defines "Scheduled Offence" as an offence specified in the First Schedule, which are alleged to have been committed in respect, or in connection with the business of a bank, whereas, clause (a) of the First, Schedule to said Ordinance incorporates sections 408 and 420 as a scheduled offence. Learned counsel submits that since, as alleged in F.I.R., the respondent No.2, who was serving as Office Incharge with the complainant society has by forging the signature of the authorized office bearer, of the society, on the cheques from time to time withdrawn a total amount of Rs.33,19,740 from the society's account, maintained with Habib Bank Ltd., has committed offence clearly falling within the mischief of sections 408 and 420, P.P.C. and since the transaction is a banking transaction and the amount has been fraudulently withdrawn from a bank, the offence in terms of section 2(d) read with section 4 of the Ordinance, is clearly and exclusively triable by a Court constituted under the Ordinance. In support of his contention, the learned counsel refers to and rely upon the case of Muhammad Rafiq v. Manager, House Building Finance Corporation, 2003 MLD 841 where a Clerk in commercial foreign exchange in Saudi Arabia had forged various cheques and got them encashed from a bank in Pakistan, the Hon'ble Lahore High Court held such offence to be an offence falling within definition of section 2(d) of the Ordinance. On the other hand, learned counsel for the respondent No. 2 submitted that since neither the alleged act affects the business of the bank nor has the alleged forgery been committed in respect of the bank and the respondent No. 2 is also not an employee of the bank, the alleged offence does not fall within the meaning of the Offences falling in respect of Banks (Special Courts) Ordinance, 1984. Mr. Ashiq Raza, learned Dy. Attorney General supports counsel for the respondent No.2. However, we have not been able to persuade ourselves to accept the contention of learned counsel for respondent No. 2, as the language of section 2(d) of the Ordinance, very clearly defines "Scheduled Offence" as those mentioned in the First Schedule provided that such offences are committed in respect of, or in connection with the business, of a bank. Admittedly, the offence of forging a cheque and withdrawing the amount from a bank account clearly falls within the mischief of sections 408 and 420, P.P.C., whereas, the phrase alleged to have been committed in respect, or in connection with the business of a bank as employed in the aforesaid provision, clearly brings the alleged offence within the ambit of Scheduled Offence, as defined thereby. The words alleged to have been committed in respect or in connection with the business, of a bank do not call for a narrow interpretation as submitted by the counsel for respondent No.2 but embraces all such acts which pertains to banking transactions and withdrawal of an amount from a bank account is certainly and undoubtedly a banking transaction. We in the circumstances are fully in agreement with the counsel for the petitioner that the alleged offence is an offence falling within the purview of the Ordinance, and the case is thus triable by a Court constituted under the Ordinance. The petition is, therefore, allowed, the impugned order is set aside, with direction to the I/O to submit challan in F.I.R. No.155 of 2006 before a Court constituted under the Ordinance. H.B.T./K-12/K Petition allowed.