' SALMAN HAMID, J.---On 27-1-2011, when above appeals were taken up for katcha peshi, a query was raised by this court: whether the appellants could have resorted to the recovery of amount of finance, under Section 20 of the Financial Institutions (Recovery of Finances), Ordinance, 2001, (2001 Ordinance), alleged to have been defaulted by respondents instead of filing a suit for recovery before the banking court under section 9 of 2001 Ordinance, inasmuch as from the narration of the appeals, filed under section 22, of 2001 Ordinance, it appeared that, at best, it was a case of default of finance on the part of the respondents and not a case of section 20, of 2001 Ordinance relating to certain offences, as enumerated therein.
2. Time was sought by the learned counsel, whereafter all the appeals were adjourned. Today again all the appeals were fixed for katcha peshi, when the learned counsel was required to satisfy this court on the issue, mentioned above. These appeals were called in the morning and were kept aside for want of learned counsel for the .Appellants, to be taken up after tea-break. Again after tea-break, these appeals were called when again the learned counsel for the appellants was not in attendance. There was no intimation by the learned counsel for the appellants. No one held his brief and requested for adjournment. Under the circumstances, all these appeals could have been dismissed for non-prosecution. However, instead of dismissing these appeals for non-prosecution, we intend to dispose of the same on merits by this single decision.
3. The case of the appellants before this court was that earlier in time criminal complaints under section 20 of 2001 Ordinance had been filed against the respondents, they alleged to have committed default in payment of the finance, advanced by the appellants to them. All the criminal complaints which were preferred by the appellants under section 20 of 2001 Ordinance, having been dismissed by the Banking Court No,1, Larkana, in terms of impugned Order dated 30-11-2010, present appeals cropped up.
4. Contents of the memoranda of appeals would show that the respondents are employees of the appellants. Scheme of Home Finance was introduced by the appellants for the benefit of their employees. Such Home Finance facility was availed of by the respondents. Necessary security documents in order to avail the Home Finance were executed, which included post-dated cheques as well. Instalments towards repayment of the Home Finance were to be made from the deduction of the salaries of the respondents. The payment in instalments was prompt and according to the contents of the appeals there were no defaults on the part of the respondents until December, 2007.
5. From the narration of the appeals it transpired that after an unfortunate incident of 27th December, 2007, when the leader of Pakistan Peoples Party, namely Mohtarma Benazir Bhutto was assassinated, riots, loot and plunder and arson of public property begun. Appellants various branches also received the toll when such were put on fire by the unruly mob. It was the case of the appellants that damage had been caused to the property of the appellants and important record and documents were also consumed in such fire. It was further the case of the appellants that because of such a fire entire record of the Home Finance, advanced to various borrowers, including the respondents also destroyed. The respondents, it was stated by the appellants, taking advantage of such a position, defaulted in payments of instalments. Requisite notices, in the first instance for the payment of defaulted amount towards Home Finance were sent to the various defaulting borrowers, including the respondents, but to no avail. Left with no choice, criminal complaints under section 20 of 2001 Ordinance were filed against the defaulting borrowers, which included the respondents as well.
6. Bare perusal of each of the criminal complaint, filed under section 20 of 2001 Ordinance would reveal that in terms of paragraph 12 thereof, appellants stated as under:-- "12. That the cheques in question issued by the accused (respondents herein) was not presented for encashment, the same including all loan documents were destroyed due to fire of the bank branch." (emphasis provided)
7. It is thus clear from the above reproduction of paragraph 12 as available in each of the criminal complaints, that was preferred by the appellants against the defaulting borrowers, including the respondents that at no stage of time, the cheques which were obtained from the various borrowers, including the respondents towards security were presented for encashment. It would also become clear from the narration of each of the criminal complaints and also from the narration of the appeals under point that the case of the appellants was that since the default having been committed by the respondents, provisions of section 20 of 2001 Ordinance invoked.
8. Section 20 of 2001 Ordinance would make it abundantly clear that it would be enforced by a financial institution against a person, who dishonestly commits a breach of terms of security documents to his advantage and to the detriment of the financial institution or whoever makes fraudulent misrepresentation or commits a breach of an obligation or representation made to a financial institution on the basis of which the financial institution has granted a finance or subsequent to the creation of mortgage in favour of financial institution dishonestly alienates or parts with the possession of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the financial institution or subsequent to the passing of a decree under section 10 or 11 of 2001 Ordinance, sells, transfers or otherwise alienates or parts with possession of his assets or properties acquired after the grant of finance by a financial institution, including assets or properties acquired extensively in the name of ostensible owner.
9. Provision of section 20 of 2001 Ordinance further provides that whoever knowingly makes a statement which is false in material respects in an application for finance and obtains a finance on the basis thereof or applies the amount of the finance towards a purpose, other than that for which the finance was obtained by him or furnishes a false statement or statement of stocks in violation of the terms of the agreement with the financial institution or falsely denies his signatures on any banking documents before a banking court or resists or obstructs either by himself or on behalf of the judgment-debtor through the use of force, the execution of decree or whoever dishonestly issues a cheque towards the payment of finance or fulfilment of the obligation which is dishonoured on presentation shall be exposed to the penal provisions of section 20 of 2001 Ordinance.
10. Bare trace of section 20 of 2001 Ordinance would show that the respondents do not fall in any of the contingencies available in section 20 of 2001 Ordinance. This position is fortified from the very fact that the appellants themselves in each of the criminal complaints by way of paragraph 12 thereof, clearly mentioned that the cheques which were obtained as security from the respondents have been destroyed and/or burnt in the fire of 27-12-2007.
11. Such being the position at law and also on facts, criminal complaints those were preferred by the appellants against the respondents on their face were misconceived. Impugned Order dated 30-11-2010 which was passed by the Banking Court No,1, Larkana in each of the criminal complaints was just and proper and requires no interference of this court.
12.
Needless to mention that perhaps the proper remedy which was available to the appellants was under section 9 of 2001 Ordinance which provides for institution of a banking suit by the bank and/or the customer, as the case may be. Events as disclosed in each of the criminal complaints and the appeals herein prima facie shows that the respondents have defaulted in making payment of the instalments of the Home Finance. If such is the case, institution of banking suit before the banking court for recovery of defaulted amount stated to have been made would be a proper remedy to avail.
13. For the above reasons, we find no merits in the present criminal appeals and same are hereby dismissed with no order as to costs.