' ALI SAIN DINO METLO, J.----Two private limited companies, namely, National Management Consultants (Pvt.) Ltd. And National Environmental Consulting (Pvt.) Limited (the applicant), were maintaining their foreign currency accounts in ANZ Grindlays Bank (now Standard Chartered Bank), I.I. Chandrigar Road, Karachi. Dr. Junaid Ahmed was the Chief Executive of National Management Consultant (Pvt.) Ltd. He was also one of the two directors of National Environmental Consulting (Pvt.) Ltd. Having 50% shares and power to operate its accounts singly.
2. On written application of Dr. Junaid Ahmed, in the capacity of Chief Executive of National Management Consultants (Pvt.) Ltd., as well as of Syed Munawar Ali, Accountant of the company, a Viza Credit Card, with credit limit of Rs,290,400, was issued to him (Dr. Junaid Ahmed) by the Bank on 27-3-1997. The facility of finance was regularly availed by him, However, in or about the year 2003 some differences arose between him and the bank regarding repayment of the finance.
Ultimately, on 26-2-2005, the bank adjusted an amount of US Dollars 6361 from the account of the associated company i,e, the applicant
3. The applicant did not concede to the bank's lien (under -section 171 of the Contract Act, 1872) on its money for adjusting debt of its associated company or its Chief Executive, mainly on the ground that, in law, the two companies were two different legal entities. On its protest, the amount was credited back to its account and the bank had to recover the amount by filing suit in the Banking Court.
4. In addition, the applicant also filed a complaint in the Special Court (Offences in Banks) Sindh at Karachi for punishing the Manager as well as the concerned Officer of the Bank (respondents Nos.1 and 2) for committing the offence of criminal breach of trust. However, the Special Court, by its order, dated 7-10-2005, dismissed the complaint. By holding that the dispute was purely of civil nature and they had not committed any offence. The applicant has challenged the order in the present revision.
5. The basic question involved in the case is: whether money deposited with a bank is trust money, which the bank must preserve as trustee and not use, or a debt which the bank must pay as a debtor to the depositor? If it is a debt, there can be no question of prosecution for and breach of trust.
6. The question came for consideration before a Division Bench of Calcutta High Court, in the case of S. Pakrashi and another v. Emperor, reported in 1941 Calcutta 713. In the opinion of their lordships, the liability of a banker in respect of a depositor's current account was only to return to the depositor an equal sum of money and the money could not be said to have been entrusted with the banker in the sense in which the word 'entrust' was used in sections 405 and 409, Penal Code.
7. Thereafter, the question came for consideration before the Privy Council, in the case of Attorney- General of Canada and another v. Attorney-General of the Province of Quebec and another, reported in AIR 1947 Privy Council 44. In the opinion of their lordships of the Privy Council, the relationship of a banker and customer, who deposits money into ,the bank, was the ordinary relationship of debtor and creditor. Their lordships held:-- "The obligation is matuum not commoadtum. Once the deposit is made there remains only a debt due from the banker to the customer."
8. The principle laid down in the above two cases was followed by SEN J. In the case of Gopesh Chandra Pal and another v. Nirmal Kumar Das Gupta, reported in AIR' 1950. Calcutta 57. The same learned Judge in another case re Santosh Kumar and another v. The King reported in 1952 Calcutta 193, observed:-- "The relationship between a depositor and a bank is the simple relationship of a creditor and a debtor. A depositor who deposits money in a bank in his current account is nothing more than a creditor and it cannot be said that there has been any entrustment to the bank for any particular purpose. The Bank is of course liable to refund the money to the depositor when the depositor calls for it, but the money deposited belongs to the bank and the bank is entitled to deal with it as it likes."
9. In Pakistan, banks are functioning under the Banking Companies Ordinance, 1962. Under its section 5(b) banking is defined as:--- 'Banking' means the accepting, for the purpose of lending or investment,
10. The above definition makes it abundantly clear that deposits of money accepted by a bank from members of public are for the purpose of bank's use in lending or investment and not for the purpose of keeping them apart as trust money.
11. In presence of the above clear statutory provision and the judicial opinion, it cannot be said that adjustment of money from the account of the applicant against the credit card A liability of the Chief Executive of its associated company amounted to criminal breach of trust. Thus, no exception can be taken to the order of the trial Court dismissing the complaint. It was for these reasons, that the revision, being meritless, was dismissed by a short order passed on 11-8-2008.