1. ORDER SALMAN HAMID, J.---In terms of order dated 2-7-2010, the learned Magistrate-I, Tando Adam referred Crime Case No.282 of 2009 registered at Police Station Tando Adam on 31-8-2009, for offences punishable under sections 420, 379 and 506(2,) P.P.C. To Special Court, established under Ordinance XI of 1984, i.e. Offences in Respect of Banks (Special Courts) Ordinance 1984, for its trial before it by holding that since the accused, namely Nasir Ali Jatt son of Shafi Muhammad is employed in National Bank of Pakistan and that from perusal of the F.I.R. It appears that the alleged offence under section 420, P.P.C., is a Scheduled Offence, exclusively triable by Special Courts under First Schedule of the Offences in Respect of Banks Ordinance, 1984 when it come to its commission by an employee of the bank.
2. Present application under sebsection 561-A, Cr.P.C. Assails the above order of the Judicial Magistrate-I, Tando Adam, amongst others, on the grounds, as argued by the counsel for the applicant that the Judicial Magistrate-I, Tando Adam has passed the impugned order by misconstruing the law and wrongly came to the conclusion that since the applicant is a bank employee and that offence of section 420, P.P.C. Falls within the ambit of Ordinance IX of 1984, the same be tried by the Special Court, established thereunder without appreciating the fact that on the face of it there was a dispute between the complainant namely Niaz Hussain son of Haji Ghulam Abbas and one Muhammad Idrees son of Noor Muhammad Ismail, with which the applicant had nothing to do and that no complaint was lodged by the bank itself against its officer i.e. The applicant, contemplating offence under section 420, P.P.C. It was further urged by the learned counsel for the applicant that the complaint which was lodged by Niaz Hussain against the applicant and one Muhammad Idrees by itself shows that there was some dispute emanating from the agreement dated 7-10-2008 which admittedly was executed between the complainant, his two brothers Ali Nawaz and Shah Nawaz and Muhammad Idrees with which the applicant had no concern or connection. It was also argued that the learned Magistrate did not appreciate the fact that merely because the applicant was employed with the bank and that the complainant having raised an allegation of cheating against that officer by itself, would not make him liable to be tried by the Special Court, constituted under Ordinance IX of 1984, inasmuch as that no nexus was made by the learned Judicial Magistrate in connecting the applicant with the offence under section 420, P.P.C., making it triable by the Special Court under the referred Ordinance. The learned counsel finally argued that section 2(d) of Ordinance IX of 1984 clearly stipulates that Scheduled Offence means an offence specified in the First Schedule and alleged to have been committed in respect or in connection with the business of a bank. Elaborating further, he argued that neither the offence which was attempted to be made relatable with the applicant by the complainant was either in respect or in connection with the business of the bank and according to the complainant's on showing, the dispute was in respect of the subject-matter of an agreement dated 7-10-2008 that was reached between the parties other than the applicant.
3. The learned counsel appeared on behalf of the State supported the impugned order merely by arguing that since the applicant is an officer of the bank and since the property which is the subject-matter of the agreement dated 7-10-2008 was mortgaged with the bank, against which property Muhammad Idrees agreed to settle the loan of the bank shows that there was connection of the applicant with the same and that because of execution of such an agreement, the offence of section 420, P.P.C. Which is attributed to the applicant falls within the ambit of section 2(d) of Ordinance IX of 1984.
4. Heard arguments and perused the .
5. Record.
6. Annexures-A and A-I to the application i.e. Proposal for filing suits by the bank against the complainant after default was made by the applicant in August, 2008 followed by filing of Suit No.83 of 2009 and 84 of 2009 by the bank against such complainant and the guarantors, which suits were decreed in or about May, 2010. Filing of the suits and decree in itself shows that in fact the applicant was vigilant and was performing his duties to the entire satisfaction of the bank and that suits for recovery upon default by the complainant was filed at the applicant !s instance. The record would also show that prior to the filing of the suits, notice for recovery of the amount due and payable were also sent by the bank which remained un-responded by the complainant and when it came to the knowledge of the bank that the complainant was misappropriating the hypothecated machinery, efforts were made to secure the same by appointing bank's chowkidar.
7. During the course of the arguments the learned counsel for the applicant showed and brought on the record the entire set of Civil Suit No.1126 of 2010, with the consent of the learned counsel for the State. The Civil Suit No.1126 of 2010 seeks specific performance of Sale Agreement dated 7-10-2008 purportedly executed 'among the parties arrayed therein. Bare perusal of Annexure-A to the Civil Suit i.e. Sale Agreement dated 7-10-2008 would show that the same had been reached between the parties mentioned therein without participation of the applicant and/or the same was without the consent of the bank which was essential, as by such agreement, the property which was mortgaged with the bank was agreed to be sold towards the satisfaction of the loan, which was extended by the bank to the complainant, which he failed to repay and for which recovery Suits were also filed. Any agreement that was executed between two individuals or more and that too without the knowledge of the party by which the interest of such party is put at peril, which in the present case was the bank cannot be said that cheating was committed by some officer of the bank; thus, make them liable to be prosecuted by special Courts under Ordinance IX of 1984.
8. It seems that the learned Magistrate got impressed by noticing the name of the bank officer in the F.I.R. And that such officer is alleged to have been involved regarding some banking transaction and therefore the learned Magistrate straight away came to the conclusion that the case falls within the meaning of section 2(d) of Ordinance IX of 1984 without appreciating the fact that in order to bring the offence within the meaning of section 2(d) it was incumbent upon him to examine whether the Scheduled Offence specified in the First Schedule of Ordinance IX of 1984 was committed in respect or in connection with the business of the bank. In the present case it has clearly come on record that at best the case of the complainant was against Muhammad Idress son of Noor Muhammad in respect of the alleged violation of the terms and conditions of the agreement dated 7-10-2008 and/or cheating in respect thereof, wherein the property of the complainant which was mortgaged with the bank was mentioned to be sold by the Complainant in favour of Muhammad Idrees towards the satisfaction of the loan liability of the bank.
9. Thus it has become clear that the offence with which the applicant is charged does not fall within the meaning of section 2(d) of Ordinance IX of 1984, as neither it is in respect nor in connection with the business of the bank. Therefore, the application is granted and the Civil Judge and Judicial Magistrate-I Tando Adam is directed to proceed further into the matter and/or on the Report submitted by SIO (Incharge I.T.) Police Station Tando Adam.