2009 PLP 1422 (CLD)

CH. MAHMOOD AKHTAR KHAN, J.

Brief facts of the case are that the petitioner got the Vehicle No.RLC-8879 on lease from Askari Leasing Limited respondent No.1. authorization letter was issued on 18-3-2006. Total outstanding, amount payable by the petitioner to the Leasing Company was Rs.30,60,000 in 36 instalments and Rs.7,65,000 insurance charges for the next whole year was to be paid by the petitioner being customer of the company. The whole amount was to be paid in instalment of Rs.89t827 per month, for which the petitioner handed over post dated cheques to the company. Two cheques were encashed while third cheque was dishonoured because the vehicle met an accident on 25-3-2006. Dispute arises between the petitioner and the company regarding the payment of the amount. The petitioner being customer within the meaning of section 2-C of the Financial Institutions (Recovery of Finances) Ordinance, 2001 of the respondent-Company filed a suit for declaration, permanent injunction and for recovery of money spent on repair of vehicle against the company on 5-1-2007. The company filed petition under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to appear and defend the suit which is pending adjudication before the learned Judge Banking Court Rawalpindi. Notwithstanding the above position with mala fide intention and ulterior motive, the company got the case registered against the petitioner under section 489-F, P.P.C. on 5-12-2006 at Police Station Waris Khan, Rawalpindi.

2. Arguments heard. Record perused.

3. Petitioner is a "Customer" within the meaning of section 2(c) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and complainant is a Financial Institution within the meaning of section 2-A of the said Ordinance. Financial Institutions (Recovery of Finances) Ordinance, 2001 was promulgated on 30-8-2001. Being special law, section 20 of the said Ordinance relates to the offences and the penalties thereto. Trial under the said Ordinance also provides separate mechanism. Clause (b) of subsection (1) of S.7 provides that:-- "Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorized in this behalf by the Financial 'Institution in respect of which the offence was committed."

4. Section 489-F, P.P.C. was inserted vide Criminal Law Amendment Ordinance No.LXXXV of 2002 and' the same was promulgated on 25-10-2002 which was published in official Gazette of Pakistan extraordinary Part-1. In the said Ordinance no overriding effect was given. Section 489-F, P.P.C. deals with dishonour of cheque in general application to general public and in relation to general affairs, whereas subsection 4 of section 20 of Financial Institutions (Recovery of Finances) Ordinance, 2001 provides a penal provision of law in respect of those cheques issued and dishonoured qua special relationship of a customer and financial institution.

5. Object and reasons for enacting Financial Institutions (Recovery of Finances) Ordinance, 2001 were to provide specific forum to the Banks for recovery of their loans from their customers and likewise to the customers to approach the same Court if they had any grievance against the Bank. Word "Loan" was substituted in P.P.C. with word "Finance". Similarly punishment of one year was substituted with three years in P.P.C., object to legislate section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was different than object to section 489-F, P.P.C. Under section 7 of Financial Institutions (Recovery of Finances) Ordinance, 2001, Banking Court was conferred criminal jurisdiction to try offences punishable under the said Ordinance and for that purpose, the same power was vested in the Court of Session in the Code of Criminal Procedure, 1898. Whenever, an offence was committed under section 20(4)' of Financial Institutions (Recovery of Finances) Ordinance, 2001 Banking Court would take cognizance upon a complaint filed by authorized person and complaint would be tried by concerned Banking Court. Appeal was provided before two Judges of High Court by the said Ordinance. Under section 489-F, P.P.C. an F.I.R. was lodged with the concerned police station which is triable by Magistrate Ist Class and appeal could be filed before the concerned Sessions Judge. Section 489-F, P.P.C. would be attracted where an individual would issue cheque dishonestly in favour of another individual and the same was dishonoured on presentation. The purpose of both the enactment was different and procedure for prosecution was also different.

6. Case against the petition purely falls within the ambit of provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 and not in the P.P.C. It is admitted canon of the construction of statutes that when special procedure has been laid down and special provisions have been made on a particular subject, then to that subject a general provision of statute cannot be applied. It is based on principle that where statute provides a procedure for doing a thing in a particular manner, then that thing should be done in a prescribed manner. Jurisdiction of Police acting under the law is ousted, because of special law i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001. Therefore, to proceed further with the F.I.R. against the petitioner or allowing it to exist, is only a wastage of time and abuse of process of law. I hereby accept this petition and cancel the F.I.R. in question and direct the police not to take law into its own hands in future in cases covered within the ambit of Financial Institutions. (Recovery of Finances) Ordinance, 2001. M.B.A./T-26/L Petition allowed.