SYED MAHMOOD ALAM, J. - This Criminal Revision Application is directed against the judgment, dated 07.10.2006, passed by the learned Judge Banking Court-ll, Karachi, in Criminal Complaint No. 2/2006, filed under Section 20 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter refer to as the Ordinance, 2001) whereby the respondents/accused were acquitted.
2. Precisely, the facts of the case are that a direct complaint has been filed by the applicant against the respondents for an offence punishable under Section 20 of the Ordinance, 2001, and which contends therein that the applicant granted the leasing facility to respondents to the extent of Rs. 76,40,000/- in respect of 02 units air-condition Hiro Buses. The respondents purchased the air-condition units from M/s. Indus Engineering on 08.03.2004, for Rs. 24,40,000/- and sold. It to the applicant for fixing in the buses, which were leased out to respondents and the respondents were bound to effect the payment in 60 monthly instalments at the rate of Rs. 1,44,890/- each, commencing from March, 2004 with expiry in March, 2009. All the documents were prepared including the post-dated cheques and personal guarantees of the respondents Nos. 2 and 3. It is, alleged that the respondents were not regular in payment of lease rentals and even the post- dated cheques were dishonoured. As a result, the applicant possessed both the buses without air- conditions in the month of February, 2005, as the air- conditions were removed by the respondents.
This act shows the dishonesty on the part of the accused persons/respondents, which is an offence under Section 20 C.L. 19 of the Ordinance, 2001. Hence the complaint was filed, The learned Trial Court recorded the statement under Section 200, Cr.P.C. And thereafter, registered the complaint and issued bailable warrants against the respondents. The respondents appeared in the Trial Court. Charge was framed against both the respondents to which they pleaded not guilty and claimed the trial. Thereafter, the applicant examined their representative Mohsin Siraj and produced documentary evidence. Thereafter their side was closed. The respondents No. 2 and 3 recorded their statements under Section 342, Cr.P.C. And denied the allegations. The respondent No. 3 examined himself on oath under Section 340(2), Cr.P.C. And further examined Sikandar Bukhsh as defence witness. Thereafter, they closed their side.
3. The learned Trial Court made three points for determination which ;are reproduced as under:-- "(i) Whether the accused in order to effect the payment of lease rentals delivered the post dated cheques dishonestly to the complainant which on. Presentation were dishonoured, as alleged by the complainant?
(ii) Whether the accused persons have committed mis-appropriation of the air condition units provided by the complainant and removed the same without the consent and knowledge of complainant, as alleged by the complainant?
(iii) What offence, if any, the accused have committed?
4. Against the point No. 1, the learned Trial Court held that the delivery of post dated cheques beyond the terms and conditions of the lease agreement shows the intention of accused for payment of rentals honestly which also find support from the payment through pay orders in spite of the fact that the post dated cheques which were in possession of complainant were delivered to them by accused hence the complainant have failed to prove the delivery of post dated cheques by the accused dishonestly, without any shadow of reasonable doubt. The point No. 1 is decided as not proved.
5. That on point No. 2, the learned Trial Court has given the findings that the respondents Nos. 2 and 3 have admitted that the air-condition units were removed from the buses for the purpose of service and the same are still lying with them and that they were ready to return the same to the applicant. Therefore, it was proved that both the parties had agreed i.e. Accused persons/respondents No. 2 and 3, to return the units to the applicant and the applicant had also agreed to take back the air-condition subject to the shortfall. As such, there was no question of misappropriation of air-conditioning units of concealment of any fact in respect of the said air- conditioning units, hence the point No. 2 was decided as not proved.
6. As per discussion and findings of the points Nos. 1 and 2 the learned Trial Court was pleased to acquit the respondents Nos. 2 and 3 under Section 265-H(i), Cr.P.C.
7. The learned counsel for the applicant has contended that as per evidence on record all the charges were admitted by the respondents Nos. 2 and 3 hence acquittal is illegal and as a result of misreading of the evidence. He has further contended that in the presence of mandatory provisions of Section 20, sub-section. (4) of the Ordinance, 2001, the burden would be on respondents Nos. 2 and 3 that they had made arrangements to ensure that the cheque would be honoured and after non-payment and nonclearance of the cheques the units were taken in possession as per agreement. Therefore, he has prayed that this criminal revision be admitted as prima facie, the case was made out.
8. That against the impugned order passed on 7.10.2006, this revision has been filed in this Court on 12.4.2002. Therefore, on 22.7.2008, this Court had directed the learned counsel for the applicant to address this Court on the point of maintainability of the revision and the same order was passed on 2,9.2008 and now today, the Court asked the learned counsel to satisfy this Court how the revision is maintainable. The learned counsel for the applicant has contended that in the Ordinance, 2001 though the provision of appeal has given by virtue of Section 22 of the Ordinance, 2001, but the power of revision was always available to this Court,. He has further contended that the revisional authority of the High Court es per Sections 435/439, Cr.P.C. Has not been taken away by expressing or - in clear terms the ouster of jurisdiction, which must be expressed in dear, and in unqualified words, therefore, the Ordinance had not completely ousted the jurisdiction of the High Court and he has relied upon the case reported as:-
(i) Habib Bank Ltd. v. The State and 6 others (1993 SCMR page 1853).
(ii) Abdul Aziz v. Abdul Hameed and 10 others (2004 YLR page 2301).
(iii) United Bank Limited through Principal Officer/Attorney/Area Manager, Multan Zone, Multan v.
The State(2005 YLR page 1891).
(iv) Jam Sooba v. The State (2004 YLR page 2302).
8. Heard the learned counsel and perused the record.
9. This is an admitted fact that the impugned order was passed on 7.10.2006 and this revision was filed on 12.4.2002 and the applicant failed to file appeal against the impugned order as provided under Section 22 of the Ordinance, 2001 which is reproduced hereinbelow:,-- "22. Appeal.- (1) Subject to sub-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal to the date fixed for hearing.
(3) ................................................ .....
(4) .......................................................
(6) No appeal, review or revision shall lie against . An order accepting or rejecting an application for leave to defend or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under sub-section (11) of Section 15 or subsection (7) of Section 19.
(7) ......................................................... .....
10. By going through the above provision it is crystal clear that against an interim/interlocutory order, which does not decide the entire case, no appeal, review or revision shall lie nor against an order accepting or rejecting an application for leave to defend or any interlocutory order of the Banking Court, which shows that the revisional powers have not been ousted by the clear terms of the statute(1) whereas per sub-section (1) against the final order the appeal shall be filed within 30 days.
11. That the Ordinance, 2001, is a special statute and the period of limitation for appeal has not been prescribed in the Ordinance, 2001, therefore, provision of Section 5 of the Limitation Act, 1908 would not apply and if we convert this revision into an appeal the same would be hit by limitation.
12. That, even otherwise, in presence of clear provisions of Section 22 of the Ordinance, 2001, this revision cannot be converted into a Constitutional petition. Therefore, the same is not maintainable. The judgment relied upon by the learned counsel for the applicant with utter respect are distinguishable with the facts of the instant case, hence not applicable.
13. In view of the above this Criminal Revision Application is not maintainable hence dismissed, in lim ine alongwith the listed applications.
14. These are the reasons of the short order dated 20.11.2008.