ABID MAHMOOD MALIK vs STATION HOUSE OFFICER, POLICE STATION

ORDER

' MUHAMMAD ANWAR KHAN KASI, J.---The petitioner seeks abashment of F.I.R. No,588, dated 28-11- 2012, under section 489-F, P.P.C. Of Police Station Magalia Islamabad, on the ground that the cheque was issued in bona fide good faith for repayment of the loan-amount to the Bank and since the dispute had arisen between Financial Institution and customer, the sole jurisdiction vests with the Banking Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001 [hereinafter to be referred as the Ordinance 2001] and under section 7 of the Ordinance, learned Judge Banking Court in exercise of its criminal jurisdiction shall try offences punishable under the Ordinance.

2. It is further contended that the Banks are de-barred from taking advantage of section 489-F, P.P.C. Through initiation of proceedings against the defaulter merely on the dishonouring of any cheque issued by the debtor, who had availed any finance facility.

3. In support of his submissions, learned counsel for petitioner placed reliance upon following case- laws:--

(i) PLD 2009 Lahore 541

(ii) 2009 PCr.LJ 325 (D.B.)

(iii) 2010 YLR 547

(iv) 2009 CLD 1422

(v) 2010 CLD 344

(vi) 2010 PCr.LJ 412 (vii)2009 CLD 1149 (viii)2011.CLD Lahore 1539

(ix) 2012 MLD Sindh 1551

(x) 2012 PCr.LJ Sindh 1890 3(sic) The case-laws are on the point that the Ordinance 2001 is a complete code providing procedure of the Banking Courts and in case of a financial dispute, a complaint in writing has to be filed before the Banking Courts.

4. Conversely, learned Standing Counsel assisted by learned counsel for the respondent No,3- complainant opposed the petition by stating that the cheese was issued for the payment of loan, which was dishonored, and, therefore, the provisions of section 489-F, P.P.C. Are attracted in the case and since it is a cognizable offence, the police rightly lodged the F.I.R.'

5. It is further contended that the purpose of law is to bring the facts into light through investigation; while abashment of F.I.R. At the earlier stage would be an attempt to bury the factual issues between the parties and such practice shall encourage the offendeRs, In this regard reliance is placed upon case-laws reported as 2006 CLD 625 and 2010 CLD 10.

6. Heard and record perused.

7. Admittedly, the respondent No,3-complainant is a financial institution and the dispute between the parties is a finance facility, which was granted in routine as a Bank Policy. The said cheque, if any, was regarding the re-payment of finance facility and the financial institutions have all the remedies available under the Financial Institutions (Recovery of Finances) Ordinance, 2001.

8. Section 20(4) of the Ordinance, 2001 provides that whoever dishonestly issues a cheque towards re-paym ent of a finance or fulfillment of an obligation which is dishonored on presentation, shall be punishable with imprisonment which may extend to 1 year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he made arrangements with his bank to ensure that the cheque would be honored and that the bank was at fault in not honoring the cheque.

9. The Ordinance being special enactment has also an overriding effect on the ordinary law, therefore, in my view, petitioner cannot be proceeded with under the provision of Pakistan Penal Code and only remedy available for the Bank and financial institution is to invoke the provisions of section 20 by filing a direct complaint under section 7(1)(b) of the Ordinance and the prosecution of the petitioner under section 489-F, P.P.C. Is abuse of process of the court and without lawful authority.

10. The dictum laid down by the superior courts is very exhaustive and very unambiguously states that the banks are debarred from taking advantage of section 489-F, P.P.C.

11. In view of above, this petition is allowed and in consequence thereof, F.I.R. Bearing No, 588, dated 28-11-2012, under section 489-F, P.P.C. Of Police Station Magellan Islamabad is quashed. No orders as to costs.

12. . F.I.R. Quashed. KMZ/29/ISL .