2010 PLP 760 (YLR)

BHAJANDAS TEJWANI, J.

This bail before arrest application has been moved on behalf of the applicant, he is facing trial under sections 489-F, 420, P.P.C. in the Court of learned Civil Judge/ Judicial Magistrate-I, Mirpurkhas. The allegations against the applicant are that his firm namely Messrs Gold Star Paper Mill (Pvt.) Limited was allowed finance's of Rs.Five Crores against securities of mortgage of property. The applicant for the repayment of said finance had issued tour cheques of Rs. Ten lacs each on different dates, which were dishonoured as sufficient balance was not lying in the account of the applicant, therefore, the complainant, as Manager of the Bank, approached Sessions Court, Mirpurkhas for lodging the F.I.R. under sections 489-F and 420, P.P.C. against the present applicant and by order dated 14-1-2009 the learned 1st: Additional Sessions Judge, Mirpurkhas allowed such application and the complainant lodged F.I.R. with Police Station, Town Mirpurkhas in crime No.25 of 2009. The Police after usual investigation, submitted challan before the learned Judicial Magistrate on 4-3-2009. The bail application was moved on behalf of the applicant before the learned Sessions Judge, Mirpurkhas and by order dated 22-6-2009 the same was not allowed with observation that the offence is exclusively triable by the Court established under Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, he has no jurisdiction in the matter. Learned counsel for the applicant has pressed this bail application on the grounds that the applicant is admittedly customer and borrower of the complainant's Bank and the alleged cheques were issued by him towards the adjustment of his financial liability, therefore, he has to be dealt with in accordance with the provisions of section 20, subsection (4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and the offence, if any, falls within the said section, which is bailable, non-cognizable and compound-able. According to him, since, the alleged offence is non-cognizable, therefore, F.I.R. lodged by police under sections 489-F and 420, P.P.C. is without lawful authority and proceedings/trial of the case before the learned Magistrate is coram non judice. Mr. Shahid Ahmed Shaikh, learned Asstt. P.G. conceded to the above legal position that police has wrongly taken cognizance in the matter and it is only the Banking Court concerned who can take cognizance of the matter on a direct complaint, therefore, he has no objection for confirmation of the bail. I have considered the arguments of learned counsel for the applicant as well as learned Assistant P.G. and have gone through the contents of F.I.R. challan and other material placed on record. Admittedly, there is relationship of Financial Institution and customer between the Complainant Bank and the applicant/ customer, and repayment of the finance's four cheques were issued by the applicant, therefore, the offence, if any, with which the applicant can be charged will be section 20 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and cognizance can only be taken on the direct complaint as defined in section 4(h) of Cr.P.C. by the concerned Banking Court and the said section in which the applicant can be tried is bailable, non-cognizance and compoundable, therefore, the matter with regard to the cognizance taken by the police is triable by the ordinary or Banking Court and applicability of section 20 in the matter requires further inquiry. Accordingly, this bail application is allowed. Interim bail already granted to the applicants vide order dated 30-6-2009 is hereby confirmed on the same terms and conditions. H.B.T./S-1/K Bail confirmed.