2014 PLP 858 (CLD)

SHOAIB SAEED, J.

This writ petition is directed against the impugned order dated 31-8-2013 passed by respondent No. 1.

2. Brief facts of the case are that the petitioner instituted a suit for declaration and rendition of account along with permanent injunction titled Muhammad Masood Khan v. Askari Bank Ltd. which is pending adjudication with Judge Banking Court-II, Multan. The Court on 24-1-2013 passed injunctive order in favour of the petitioner wherein respondent No.2/Askari Bank Ltd. was restrained to adopt any illegal coercive measures for recovery of loan. Respondent No.2 did not put in appearance but moved an application before respondent No.1/Justice of Peace for registration of criminal case against the petitioner.

3. Petitioner had obtained an agricultural loan and failed to pay the same as per terms and conditions of the agreement.

4. A cheque No.0477323 dated 3-6-2013 amounting to Rs.46,20,000 reference Account No.0112010250001-3 Askari Bank Ltd. Burewala Branch was issued in favour of the Bank. The same on presentation was dishonoured due to insufficient amount.

5. Respondent No.1 sought comments from respondent No.3 and on receipt of the same passed the impugned order dated 31-8-2013.

6. It was contended by counsel for the petitioner that respondent No.2 (Askari Bank Ltd.) is "Financial Institution" within the meaning of section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 whereas the petitioner is a customer under section 2(c) of the Ordinance ibid. Being a financial institution, respondent can adopt recourse to the procedure under the Ordinance ibid for recovery of its defaulted loans by filing proceedings against the delinquent defaulters with the Banking Court having exclusive jurisdiction to adjudicate and decide such matters. By obtaining impugned order, the ultimate object of respondent No.2 is for initiation of proceedings under section 489-F, P.P.C. as cheque issued by the petitioner in favour of respondent No.2 stood dishonoured. It was averred that scheme of both the enactments is poles apart. Financial Institutions (Recovery of Finances) Ordinance, 2001 being a special enactment has an overriding effect on the ordinary law, therefore, the only recourse available to respondent No.2 was to invoke the provisions of section 20 of the Ordinance ibid by filing a complaint in terms of section 7 of the said Ordinance. Prosecution of the accused on the basis of F.I.R. would be abuse of process of Court and without lawful authority. Reliance was placed on the cases reported as Gul Muhammad and others v. The State (1999 SCMR 2765), MADAWA through President v. Inspector-General of Police, Punjab and 15 others (PLD 2013 Lahore 442), Sabir Ahmad v. Nazeer Ahmed and another (2010 PCr.LJ 412), Mian Farid and another v. Industrial Development Bnak of Pakistan and 4 others (2005 PCr.LJ 766) and Sheikh Mureed Hussain v. S.H.O. Police Station Kohsar, Islamabad and 2 others (2005 PCr.LJ 144).

7. Conversely, it was argued that the petitioner having availed the finance facility in lieu whereof issued cheque for its repayment on presentation it stood dishonoured. The Bank was within its lawful rights to proceed on the criminal side. The order dated 31-08-2013 was na ve as respondent No.3 was directed to attend the grievance of respondent No.2 (Askari Bank Ltd.) strictly in accordance with law and reliance in this regard was placed on the case reported as Muhammad Mazhar Iqbal v. The State and another (2011 CLD 704 Lahore).

8. Arguments heard. Record perused.

9. There is no cavil that the aims and objects of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and initiating proceedings under the Pakistan Penal Code are entirely different as both the enactments cannot be amalgamated or confused with each other. Civil liability exists between the parties diverting it into criminal offence where a complete recourse for recovery of such liability is provided under the Ordinance ibid seems to be with mala fide intention and ulterior motive. Subsection (4) of section 20 of the Ordinance ibid provides the remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds would be governed by the said section of law, the Bank can file a direct complaint in the Banking Court having jurisdiction in this regard. Respondent bank can avail remedies available under the Ordinance ibid for recovery of its debt as well as for the dishonoured cheque. Respondent No. 3 (SHO) in compliance of the impugned order dated 31-8-2013 registered case F.I.R. No.599 dated 3-9-2013 under section 489-F, P.P.C. but recommended cancellation of the same on 15-9-2013 on the basis of investigation carried out by him. Proceeding further on the basis of the said impugned order would be abuse of process of the Court and without lawful authority.

10. In view of the above, this writ petition is allowed and the impugned order dated 31-8-2013 passed by learned Ex-officio Justice of Peace, Burewala is hereby set aside. HBT/M-270/L Petition allowed.