' IJAZ AHMAD CHAUDHRY, C.J.---Through this petition under section 497(5), Cr.P.C. Muhammad Mazhar Iqbal/petitioner, Recovery Officer, Trust Investment Bank Ltd., who is complainant of case F.I.R. No,760 registered at Police Station Defence-A, Lahore, on 4-9-2010, for offences under section 489-F, P.P.C. Has sought cancellation of bail before arrest granted to Zaheer Ahmad Khan/respondent No,2 in the present, case vide order dated 13-10-2010 by the learned Additional Sessions Judge, Lahore.
2. Precisely, according to F.I.R., respondent No,2 availed loan facility from the Bank for a sum of Rupees 12 Million and according to the agreement the loan amount had to be returned through cheques issued by the petitioner for payment of the monthly instalments. The cheques issued by the respondent in this connection were bounced on presentation before the Bank, hence this case.
3. In support of this petition, it has been argued that huge amount of the petitioner is to be recovered from respondent No,2. Who has been found guilty during investigation but the learned trial Court has allowed concession of pre-arrest bail to the petitioner through the impugned order by ignoring the considerations required for the grant of pre-arrest bail.
4. Conversely, learned counsel for respondent No,2 has vehemently opposed this petition by submitting that bail has rightly been granted to the respondent as contents of the F.I.R. Depict a matter of recovery of loan, which can be recovered by the petitioner by filing a complaint under section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, so no criminal case could have been registered and the concession of pre-arrest bail has rightly been given to respondent No,2.
5. Learned Additional Prosecutor General, on the other hand, has adopted the arguments of the learned counsel for the petitioner.
6. I have heard the learned counsel for the parties and gone through the record. It is an admitted fact that respondent No,2 had given the cheques towards repayment of his loan amount, which were dishonoured on presentation in the bank. No doubt the complainant could file a complaint under section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, but the question, which has arisen for consideration is as to whether the Bank is debarred to get registered a criminal case under section 489-F of the Pakistan Penal Code. To better appreciate the point section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and section 489- F, P.P.C. Are being reproduced:-- ' Section 20 "20. Provisions relating to certain offences.--
(1) Whoever---
(a) ______________________________________
(b) _________________________________
(c) ______________________________________
(d) _________________________________
(2) _____________________________________
(3) _____________________________________
(4) Whoever dishonestly issues cheque towards repayment of finance or fulfilment of an obligation which is dishonourned on presentation, shall be punishable with imprisonment which may extend to one 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 honoured and that the bank was at fault in not honouring the cheque.
(5) Where the person guilty of an offence under this Ordinance is a company or other body corporate, the chief executive by whatever name called, and any director or officer involved shall be deemed to be guilty of the offence and shall be liable to be prosecuted against and punished accordingly.
(6) All offences under this Ordinance shall be liable, non-bailable and compoundable."
Section 489-F, P.P.C.
"Dishonestly issuing of cheque. ---Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured 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."
7. The latter section added in the Pakistan Penal Code by virtue of Ordinance LXXX-B. Of 2002 dated 25-10-2002 for the sole purpose to curb frequent issuance of cheques in order to defraud the recipients of the amount with intention not to payback the amount. This is not bailable but is compoundable and is punishable up to three years, whereas according to the former provision the offence is punishable with imprisonment, which may extend to one year. So the intention of the legislature was clear that such tendency be curtailed to the maximum. Since the amendment has been brought after the promulgation of Ordinance, 2001, therefore, the choice of the petitioner/complainant to seek its remedy through the latter development in law cannot be thrown out merely for the reasons that it has other remedies.
' It is the prerogative of a person to get redressed his grievance through efficacious and speedy remedy of his choice and no objection from the other side can be entertained in this regard. So, it does not lie with respondent No,2 to seek aid of this court to declare that the complainant/petitioner should have approached the Banking Court by invoking the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 instead of availing remedy under section 489-F, P.P.C. For redressal of his grievance.
8. The complainant wisely selected to proceed against respondent No,2 under section 489-F, P.P.C.
Inasmuch as offence under section 20 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, is bailable and a person cannot be remanded to custody in such offences, if he furnishes surety bonds whereas offence under section 489-F, P.P.C. Is non-bailable and the accused can be given in the custody of the police, so with a view to exert more pressure upon the delinquents, the remedy under the latter offence is more efficiacious and it cannot be refused merely for the reason that only individuals can take the benefit of section 489-F, P.P.C. Further, even now the complainant/petitioner can avail the remedy under section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 in addition to the remedy already availed by it under Pakistan Penal Code as criminal and civil proceedings can run side by side and the respondent cannot take the advantage as to which of the proceedings should run first.
9. A huge amount of the Bank is still in pipeline, the cheques issued by respondent No,2 towards repayment of loan have already been bounced, hence, ingredients of section 489-F, P.P.C. Are fully attracted. Even otherwise, the respondent did not bother to make arrangement for the return of said amount according to agreement, which shows mala fide on the part of the respondent. So for incriminating evidence in the shape of dishonour slips issued by the bank is available on the record, which sufficiently connects the petitioner with the offence. The learned trial Court has not taken into consideration the parameters laid down by this Court as well as by the Hon'ble apex Court for the grant of pre-arrest bail, which is meant to protect the innocent citizens from arrest who are involved in the criminal cases with mala fide. But the learned counsel for the respondent has not been able to point out any ill will or personal grudge on the part of the complainant or the police, so as to falsely implicate the petitioner in this case. In such circumstances, it is prima facie established on record that the learned Additional Sessions Judge has not properly exercised his discretion while granting bail to respondent No,2. Consequently, this petition is accepted and ing order dated 13-10-2010 passed by the learned Additional Sessions Judge, Lahore, is hereby set aside and ed to respondent No,2/Zaheer Ahmad Khan is cancelled.