' SH. HAKIM ALI, J.---An order dated 14-11-2005, passed by learned Additional District Judge, Ahmadpur East in an application filed for setting aside ex parte decree dated 30-11-2004, passed in a suit filed under Order XXXVII, rules 1 and 2 of the C.P.C. With the title of "Muhammad Javed Akhtar v. Muhammad Asif", is under challenge in the instant civil revision.
2. To appreciate law points, which have been emanated in the case, the knowledge of facts is necessary. Muhammad Javed Akhtar, respondent had filed a suit under Order XXXVII, rules 1 and 2 of the C.P.C. For recovery of Rs,5,00,000 on the basis of a cheque, issued in favour of Muhammad Javed. Akhtar by Muhammad Asif, present petitioner on 15-12-2003. The cheque was presented to Muslim Commercial Bank, Uch Sharif Branch but was dishonoured. So, an F.I.R. 138 of 2004 under section 389-F, of the P.P.C. Was got registered by Muhammad Javed Akhtar. Report under section 173 of the Cr.P.C. Was submitted by the police to the learned Judicial Magistrate, Ahmadpur East, before whom the proceedings of the case were pending. On 29-5-2004, respondent filed the above noted suit for recovery of the amount, in which the petitioner had appeared and filed application to appear and defend the suit, which was allowed subject to furnishing of surety bond.
Instead of furnishing of surety bond, present petitioner filed an application in that Court, and absented himself thereafter. So, the suit was decreed on 30-11-2004. Application for setting aside the aforesaid decree was filed on 7-11-2005 after passing of near about one year. The application for setting aside ex parte decree was dismissed by the learned Additional District Judge through his order dated 14-11-2005. Hence, this civil revision.
3. The petitioner's learned counsel has raised the following questions:--
(i) Muhammad Javed Akhtar, decree-holder had got three choices/options for redressal of his grievances:--
(a) By filing a suit in the ordinary Civil Court;
(b) By filing a suit under Order XXXVII of the C.P.C. Before the District Court; or
(c) By lodging an F.I.R. Under section 489-F of the P.P.C. With the police.
' Elaborating his arguments, learned counsel states that once a choice was exercised, the other choice was not available to the decree-holder. As Muhammad Javed Akhtar had got registered an F.I.R. No,138 of 2004 against the petitioner on 10-4-2004, therefore, suit for recovery of Rs,5,00,000 under Order XXXVII of the C.P.C. Was not competent and maintainable before the learned Additional District Judge. He has further explained it by stating that provisions of section 522-A of the Cr.P.C. Has conferred powers upon the learned Criminal Court to restore the property to the person, who was deprived of it due to commission of an offence. As the learned Criminal Court was seized of the challan case, therefore, it was empowered and had got jurisdiction upon conviction, if any recorded in future against the petitioner, to order the payment of the amount in dispute, as found due against the petitioner. Therefore, filing of the suit under Order XXXVII and consequently ex parte decree, passed were liable to be set aside by the learned Additional District Judge.
(ii) As per learned counsel, the filing of the suit in the presence of criminal proceedings was vexing twice to the petitioner for the same subject-matter. A person cannot be burdened to face two proceedings simultaneously.
(iii) In case of acquittal in case of section 489-F of the P.P.C. Two conflicting judgments would appear on the scene. Therefore, decree should have been set aside by the learned Court below.
4. To scrutinize the worth of the arguments, reproduction of section 522-A of the Cr.P.C. 1898 is necessary:-- "522-A. Power to restore possession of movable property.---(1) Whenever a person is convicted of an offence of criminal misappropriation of property or criminal breach of trust or cheating or forgery and it appears to the Court that, by such misappropriation, breach of trust, cheating or forgery, any person has been dispossessed or otherwise deprived of any movable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction, order the person dispossessed or deprived of the property, where such property can be identified to be restored to the possession of such property, whether such property is in the possession or under the control of the person convicted or of any other person to whom it may have been transferred for any consideration or otherwise.
(2) Where the property referred to in subsection (1) cannot be identified or has been disposed of by the accused so that it may not be identified, the Court may order such compensation to be paid to the person dispossessed or deprived of such property as it may determine in the circumstances of the case.
(3) No order referred to in subsection (1) or subsection (2) shall prejudice any right or interest in any movable property which any person may be able to establish in a civil suit."
' The provision of section 522-A, of the Cr.P.C. Has provided the following ingredients and essentials for its application to a situation:--
(i) To invoke the powers under section 522-A of the Cr.P.0 the offence of misappropriation, breach of trust, cheating or forgery must have been brought to the Criminal Court.
(ii) The person in consequence of these offences is dispossessed or otherwise deprived of any movable property.
(iii) The conviction is recorded by the Criminal Court.
(iv) At the time of recording of that conviction, if the Court thinks fit, or within one month from the date of recording of conviction, that the. Person dispossessed or deprived of the property, which property can be identified, be restored its possession, then it may pass such an order of restoration.
' From the above noted points, it has appeared that section .489-F of the P.P.C., which is as follows:- - "489-F. Dishonestly issuing a cheque.---Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonored on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
' Is not included within the encompass/ambit of section 522-A of the Cr.P.C. This section 489-F is newly-added section, which was brought into Pakistan Penal Code, 1860 by Ordinance No,LXXXV of 2002 Criminal Law (Amendment) Ordinance, 2002, dated 25th October, 2002, while section 522-A of the Cr.P.C., 1898, was inserted in the aforementioned Code through Ordinance XVII of 1984, Code of Criminal Procedure (Amendment) Ordinance, 1984. Therefore, the offence of section 489-F of the P.P.C. Was not inserted and made part of section 522-A of the Cr.P.C. At that time. Difference between offences noted in section 522-A of the Cr.P.C. And the offence newly-created through section 489-F of the Pakistan Penal Code, 1860, can also be noted from the bare reading of both these sections.
5. Moreover, in section 522-A of the Cr.P.C. Words "Court may" have been used which grants discretion to the Court to order or not to restore the property in dispute with which an offence as mentioned in that section has been committed.
6. There is a specific provision in the shape of subsection (3) of section 522-A of the Cr.P.C. Which grants power to any person to file a civil suit, with regard to any movable property and establish his right/interest in any such movable property, the subject-matter of offence through a civil suit. From this plain wording of subsection (3) it has become clear that a civil suit is not barred even in the presence of this section 522-A of the Cr.P.C.
7. Learned counsel's version that suit under Order XXXVII of the C.P.C. Or the suit in the Civil Court cannot be filed, when an F.I.R. Under section 489-F of the P.P.C. Has been got registered and that a person cannot be vexed twice for the same subject-matter, cannot be accepted in the case, because the civil suit and the criminal proceedings are two different remedies provided by law.
Both these remedies have different consequences. In the commission of an offence, punishment is provided while through the civil suit, recovery proceedings are commenced and the amount which is established to have been paid, is recovered. Therefore, both these remedies are not overlapping and have different results and consequences. As the results of both these remedies differ, so both the remedies simultaneously can be availed of by the person who has been conferred/granted such remedies by law. The exercise of right of filing of suit cannot create any hindrance in the way of lodging of F.I.R. Under section 489-F of the P.P.C. And vice versa.
8. The arguments raised by the learned counsel that a man cannot be vexed twice for the same subject-matter, is not applicable in the instant case because from one subject-matter/transaction or action, if different rights to commence proceedings of civil or criminal nature have sprung, with different results, then those can be availed of differently and the legal maxim that "a man should not be vexed twice", would not be applicable in such a case.
9. The acquittal in the criminal case filed under section 489-F of the P.P.C. Would not bring in a conflicting judgment, as against the judgment and decree passed in the civil suit for recovery of money. In the criminal case, the considerations for appreciation of the evidence are different than in a civil suit. In criminal proceedings, one is to get acquittal or conviction from the offence allegedly committed while in civil suit amount if established have to be paid, the return of it is directed. Therefore, both these remedies have got different dimensions, result and consequences.
10. The judgment/order of the learned Additional District Judge has also noted that application was filed after about one year from the passing of the ex parte decree. The petitioner is to blame himself for the filing of application for setting aside ex parte after expiry of so much period and barred by limitation. Therefore, the impugned order passed by the learned Additional District Judge cannot be interfered with, as it has been passed within jurisdiction. No excess of jurisdiction or material irregularity or illegality in the exercise of jurisdiction has been pinpointed by the petitioner.
Therefore, the civil revision is dismissed in limine.