2008 PLP 775 (CLD)

MRS. QAISER IQBAL, J.

This appeal is preferred against the judgment and. decree dated 20-4-2001 passed by learned Banking Court No. IV, Karachi in Suits No.1078 of 1997 Old No. 536 of 1984 emerged on the following facts and grounds:-- The appellant-Bank has filed suit for recovery against respondent on 8-9-1998 in the High Court of Sindh at Karachi by virtue of promulgation of the Act XV of 1997 whereby Special Courts were formulated. The appellant has prayed for following judgment and decree:-- (i) A judgment and decree for Rs.7,74,255 together with interest thereon at 14% p.a. with quarterly rest from 24-6-1984 until payment. (ii) Cost of the suit. (iii) Such further and/or additional reliefs which may be deemed proper by this Honuorable Court. The respondent No. 3 was served, filed written statement. Consent issues were framed later recasted reproduced here in below:-- (i) Whether the defendant in collusion with plaintiffs Bank Officer, have not illegally withdrawn the amounts of Rs.5,22,600 from time to time against the false entries of fake deposits in his account maintained at plaintiff bank? (ii) Whether the suit is bared by time? (iii) Whether the Officer Muhammad Yasin, officer II. Grade acted as Cashier in the year 1979 to 1980 ? (iv) Whether the defendant had shown/provided the original counter foils of deposit slips to the officers of the plaintiff Bank? (v) Whether Shabbir Abdullah can depose without power of attorney? (vi) Whether the plaintiff bank allowed the withdrawals to the defendant from his own deposit with the plaintiff bank? (vii) What should decree be? Ultimately the appellant suit was dismissed with cost. Learned counsel for appellant has contended that in the year 1978-79 respondent in connivance with one Muhammad Yasin employee of United Bank Limited made false entries in the record showing some deposits and withdrawal of amount on the basis of fake entries deposits. The Bank came to know about equivalent deposit in March, 1980. It was revealed a sum of Rs.5,25,600 was illegally withdrawn by the respondent. The respondent has also filed Suit No. 30 of 1983, employee of the bank Muhammad Yasin was arrested by F.I.A. It is urged that P.W. Bashir Abdullah an employee of the Bank in his testimony mentioned about the missing credit amount of Rs.700,

000. The respondent has admitted in the cross-examination as under:-- "The depositor if satisfied on receiving the counterfoil of deposit slip delivered to him which bears signatures of the concerned officer." The respondent admittedly did not produce counterfoil or receipts regarding his deposits with the bank. We have perused the record of the case considered the arguments advanced at bar. The respondent did not file counterfoil or receipt regarding the deposit of Rs.300,000 with the Bank. During the evidence also ample opportunity was afforded to him but of no avail which clearly indicates that in connivance with the Bank Officer Muhammad Yasin respondent has usurped Rs.522,600 from the bank account without having any credit balance. The withdrawal is admitted by respondent in the cross-examination. He had neither submitted any document nor in support thereof any witness was examined to substantiate that the deposit entries were genuine. It is next urged that trial Court has wrongly considered the admission of the respondent. "It is correct that I have not mentioned in my affidavit in evidence filed in this suit that I had shown the original counterfoil, deposit slips to the concerned staff of the plaintiff-Bank regarding my having deposited Rs.3,00,000 with the plaintiff bank." It is however pointed out that that respondent has admitted in cross-examination that "it is incorrect that I have not annexed either to my written statement of this suit or my affidavit filed in evidence in this case the balance-sheet provided to me by the plaintiff-Bank which has shown therein the balance as nil and which had prompted me to contact the bank". It is next urged that respondent could not be relieved of his responsibility to prove the deposits actually made by him although he claimed to be in possession of the photostate of counterfoil and deposit slips yet the same was not produced. Thus the responsibility of the appellant-Bank have wrongly been decided on issues Nos.1 to 4 more particularly when the collusion was set up by the bank in between Muhammad Yaseen and the respondent for causing false deposit entries in the respondent's card amounting to Rs.5,22,

600. On behalf of the respondents none appeared to refute the above version therefore, the finding of the learned Banking Judge on issues Nos. 1, 4 & 5 in the impugned judgment is hereby set aside. The appellant's suit is decreed against the respondent in a sum of Rs. 5,22,600 with cost of funds as envisaged under the law. However, the appellants have left to bear the cost of appeal. S.A.K./U-4/K Appeal accepte