2019 PLP 824 (CLD)

This appeal is directed against order dated 14.03.2019 ('impugned order') by learned Judge Banking Court No-II, Gujranwala, whereby application filed by the appellant under section 476 of Code of Criminal Procedure, 1898 ("the Code") was dismissed.

2. Brief facts, necessary for adjudication of this appeal, are that respondent No.1 filed a suit for recovery against the appellant and respondent No.2, which was decreed vide judgment and decree dated 02.03.2016. The present appellant filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO") read with section 12(2) of Code of Civil Procedure 1908 for seeking setting aside of ex-parte judgment and decree which application was dismissed on 26.11.2016. Thereafter, the appellant filed application under sections 22-A/22-B of the Code for seeking direction for initiating appropriate action against alleged forgery committed by respondents collusively, whereby allegedly the signatures of the appellant were forged on various documents, the application was disposed with an observation that Banking Court has the jurisdiction to entertain grievance of the appellant. Thereafter, appellant filed application under section 476 of the Code which too was dismissed vide impugned order. Hence, this appeal.

3. Learned counsel for the appellant submits that learned Judge Banking Court had dismissed the application without adopting the procedure provided under Chapter XXII of the Code whereby the Court was required to take cognizance and proceed accordingly, in wake of the allegation of forgery committed by the respondents regarding the documents sued upon. Per learned counsel, filing of application was an appropriate remedy and learned Judge Banking Court has the jurisdiction to take cognizance of the matter raised. Learned counsel for the appellant placed reliance on "Zafar Iqbal and another v. Asghar Ali and another" (2006 MLD 1739) and "H. Munawar Ali v. Mst. Sarwar Bano" (1989 MLD 4654).

4. In essence, the appellant is seeking declaration qua certain documents, which formed basis of the judgment and decree dated 02.03.2016. When confronted, learned counsel for the appellant admitted that order dated 26.11.2016 whereby application under section 12 of FIO read with section 12(2) of the Code of Civil Procedure, 1908 was dismissed, was not assailed, which has attained finality. The elemental question is that whether application under Section 476 of the Code is maintainable in view of the facts and circumstances and if so, whether finality earned by the judgment and decree can be disturbed by the executing court, while taking cognizance of the allegations in the application. Admittedly, appellant's application for seeking ex parte judgment and decree set aside was dismissed on 26.11.2016 - application was not placed on record - and failure to assail said order is fatal. Once the appellant has accepted the order, as a consequence whereof, finality was extended to the judgment and decree, including the documents, forming basis of the judgment and decree. Appellant cannot be allowed to make a collateral attack to a conclusive judgment and decree, when application under section 12 of the FIO read with section 12(2) of the Code of Civil Procedure 1908, was dismissed earlier. In these circumstances, the appellant is estopped to question the legality of the documents, forming part of the decree. Any determination thereof is otherwise barred in terms of the principle of res-judicata.

5. We are inclined to determine the issue of maintainability of the application under section 476 of the Code. It is expedient to reproduce subsection (1) of section 476 of the Code and clause (c) of subsection (1) of section 195 of the Code, which read as; "

476. Procedure in cases mentioned in section 195. (1) When any offence referred to in section 195, subsection (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XII." "195 (1) No Court shall take cognizance: (a)

(b)

(c) Prosecution for certain offence relating to documents given in evidence; of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."

6. The documents alleged to have been forged were not tampered while on the record of the Court during the proceedings. In order to constitute an offence under section 195(1)(c) of the Code there should be a close nexus between the offence and the proceedings, which is lacking in this case. In view of the conclusive nature of the judgment and decree, no declaration of forgery of documents can be made, unless the judgment and decree is set aside/reversed. And additionally, no offence is made out under section 195(1)(c) of the Code provided it is established that previously forged documents were used as genuine in the proceedings under reference, which is a legal impossibility unless the judgment and decree is set-aside. Reference is made to judgment reported as Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others (PLD 1992 Lahore 178), relevant portion whereof is reproduced as;

23. It seems to follow inexorably that clause (c) of section 195(1) will fail in its object if the literal construction contended for by the petitioners' Counsel is adopted. The adoption of that construction will inevitably result in extending the application of clause (c) to cases to which it was not, and could not, be intended to apply. The purposive approach to the interpretation of clause (c) of section 195(1) on the other hand leads, and leads ineluctably, to the construction that that clause applies to only those offences that have a "close nexus between the, offence and the proceeding"; in other words, it "contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings".

7. In view of the ratio laid down in above-noted judgment, it is evident that neither there is any nexus between an offence and the proceedings nor case of previously forged documents being used as genuine is made out - in wake of the conclusive judgment and decree, passed on the basis of the documents claimed to have been forged [also see judgment reported as Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 1904)]

8. The documents allegedly branded as forged documents also contained promissory note, to which document protection was extended under the provisions of Negotiable Instruments Act 1881. Even otherwise, the documents are neither produced nor taken in evidence during the proceedings. The suit for recovery filed by the respondent No.1 bank was decreed without grant of leave to defend the suit. And the appellant, in lieu of its conduct - whereby it had acquiesced to the judgment and decree, otherwise conclusive, and not assailed the order of dismissal of application under section 12 of FIO and section 12(2) of Code of Civil Procedure 1908 - is estopped to question the validity of the documents.

9. We have perused the order passed by the learned Judge Banking Court, wherein facts and law was appreciated and correctly applied. The documents alleged to have been forged were held enforceable and genuine in terms of judgment and decree, which judgment had attained finality for all intent and purposes. The judgments referred by learned counsel are distinguishable and not applicable to the facts of the case. No case is made out to show indulgence. No illegality was pointed in the order impugned.

10. In these circumstances, the learned Judge Banking Court has rightly declined to take cognizance of the matter when neither the application was maintainable nor the facts, prevalent, necessitates initiation of any action under Chapter XXII of the Code.

11. In view of the above, this appeal is without any merit and the same is, therefore, dismissed. KMZ/S-48/L Appeal dismissed.