' RANA ZAHID MAHMOOD, J.---Present is a constitutional petition challenging registration of criminal case vide F.I.R. No,23 of 2009 dated 15-1-2009 offence under section 489-F, P.P.C. Registered with Police Station Hajipura, Sialkot, wherein Zafar Abbas respondent No,3, Branch Manager of U.B.L. SIE, Branch, Sialkot City got the above said case registered against the petitioner on the ground that the petitioner had issued a cheque dated 29-9-2008 of an amount of Rs,fifty lacs in favour of the Bank which was dishonored and earlier the petitioner had availed finance facility being proprietor of Messrs Al-Karam International, Muzaffarpur, Sialkot and was a defaulter.
2. Learned counsel for the petitioner has submitted that the petitioner had availed cash finance facility in the shape of loan to the extent of Rs, fifty lacs from the complainant-bank in the year 2000 and mortgaged property worth Rs, two crores and was regularly paying the monthly instalments -without any default on the part of the petitioner till 15-9-2008. However, due to recession in the business all over the country and the world, four instalments could not be deposited and there was a default thereof to said extent only when the complainant-bank requested the petitioner to furnish guarantee cheque .Of Rs, Fifty lacs and with mala fide intention the Bank then tried to encash the same knowing fully well that the petitioner was facing crises and there was no prospects of immediate encashment of said cheque which even otherwise was a guarantee cheque and not meant for encashment, therefore, the presentation of said cheque for encashment being mala fide and ultimate registration of the criminal case, therefore, the same is liable to be quashed. The learned counsel further submitted with reference to Major (Rtd.) Javed Inayat Khan Kiani v. The State PLD 2006 Lah. Page 752 that dishonest intention on the part of the person who issued the cheque was a sine qua non for attraction of penal provisions of section 489-F, P.P.C., whereas the cheque .Being a guarantee cheque and that too at the request of the complainant-Bank, was never meant for immediate encashment and there was no question of any dishonest intention on the part of the petitioner to cause any wrongful loss to the complainant- Bank or to gain wrongfully thereby. He further submitted that Financial Institutions (Recovery of Finances) Ordinances No,XLVI of 2001 provided single forum to the Banks for recovery of their loans from their customers and likewise the customers were also entitled to approach the Banking Courts if they had any grievance against the Banks and objective to legislate section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was entirely different than the objectives of legislation behind section 489-F; P.P.C. He submitted that under section 7 of Financial Institutions (Recovery of Finances) Ordinance, 2001 only a Banking Court was conferred criminal jurisdiction to try offences punishable under said Ordinance and only Banking Court could take cognizance of an offence upon a complaint made in writing by a person authorized in that behalf by the concerned financial institutions in respect of the offences so complained. He, therefore, submitted that an appeal to the High Court before a Division Bench under section 22 of the said Ordinance was also provided, whereas the procedure under section 489-F, P.P.C. Was registration of a criminal case with the concerned Police Station and after submission of final report in terms of section 173-Cr.P.C. After due investigation, a Magistrate Ist Class was competent to hold the trial against an accused. He submitted that the two laws on the subject were entirely different and could not be intermingled, neither could be subjected to the whims and wishes of a particular party intending to take advantage of the Law as suited to him. He, therefore, submitted that section 489-F, P.P.C. Was made applicable where an individual had issued a cheque dishonestly in favour of another individual and the same was dishonored on presentation. He thus submitted that it was held in said case that purpose of both the enactments was different and procedure for prosecution also differed from each other materially. Thus submitted that the registration of the case at the instance of the complainant-Bank being a clear cut mala fide, the F.I.R. Is liable to be quashed.
3. Learned counsel for respondent No,3 has opposed the contentions and submitted that since a cheque had been issued by the petitioner to the Bank which was dishonoured, therefore, there was no illegality in the registration of the case. He submitted that for the purposes of dealing with individuals inter se and between the Banking Companies with regard to allowing of finance facility, no clog could be placed upon the Banking Institutions to only advert to the Banking Court in terms of section 7 read with section 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001.
He submitted that law does not admit any discrimination between poor and rich. He prayed for dismissal of the constitutional petition.
4. Learned Assistant Advocate General appearing on behalf of the State has supported the contentions advanced by learned counsel for the petitioner particularly with regard to case law PLD 2006 Lah. Page 752.
5. Arguments heard. Record perused.
6. There is no cavil with the proposition advanced by the learned counsel for the petitioner that the aims and objects of both the legislations/enactments i,e, Financial Institutions (Recovery of Finances) Ordinances, 2001 and the incorporation of section 489-F, P.P.C. In the Penal Code are entirely different and cannot be amalgamated or confused with one another by their application at the whims of either of the party. Recovery of finances through Financial Institutions Ordinance, 2001 is a complete code providing procedure for the Banking Courts specially constituted under said Ordinance for recovery of loans from the defaulters or taking stock of the situation at the B instance of the aggrieved party which may be the loanee against the Bank and for the commission of any offence as enumerated under section 7 of said Ordinance. Banks or their administrations, therefore, are debarred from taking the advantage of section 489-F, P.P.C. Through initiation of proceedings against the defaulter merely on the dishonoring of any cheque issued by the loanee who had availed any finance facility as scheme of both the enactments is poles apart from the scheme of the other law on the subject and the case-law referred to above by the learned counsel for the petitioner leaves no doubt in my mind that the registration of the instant case by the complainant-Bank through its Manager/respondent No,3 is nothing but mala fide action unwarranted under the law against the petitioner through registration of said case under section 489-F, P.P.C. Since the Bank can avail remedy through the Banking Court by adhering to the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, it could not get the case registered against the petitioner. The registration of the case being mala fide and abuse of the process of law altogether cannot be allowed to sustain on record. The writ petition is, therefore, accepted and F.I.R. No,23 of 2009 dated 15-1-2009 under section 489-F, P.P.C. Registered with Police Station Haji Pura, Sialkot against the petitioner is quashed with costs.