1. ' SAJJAD ALI SHAH, J.---Through this Criminal Revision the applicant/financial institution has called in question Order dated 10-6-2011 passed by the Presiding Officer, Special Court (Offences in respect of Banks) Sindh at Karachi whereby the criminal complaint filed by the financial institution under sections 420, 409, 467, 477-A, 109, 34, P.P.C. Was dismissed under section 203, Cr.P.C.
2. ' Mr. Shaukat Hayat learned counsel appearing for the applicant contends that the respondent availed finance facility from the applicant/financial institution against equitable mortgage of respondent No,1 property by depositing original Title Deeds of its property F-524, SITE, Karachi and, thereafter, executed Memorandum of Deposit of Title Documents (page-107). The respondent after availing financial facility manipulated letter dated 28-7-2004 (page-115) and 28-7-2004 (page 117), the first being no outstanding of dues and the second no objection and vacation of charge both allegedly issued by applicant Bank. The respondent thereafter manipulated another letter dated 10-8-2004 (page-119) allegedly issued by the applicant stating therein that the original title documents in respect of the mortgage property have been misplaced by the applicant Bank. The respondent thereafter on the basis of such manipulated letters 'lodged a report with concerned police station regarding misplacement of the original title' documents of the said property and thereafter by manipulating further documents sold the property to one Ashraf Channa. Per counsel upon failure of the respondent to liquidate their outstanding liability, the applicant issued demand notices and in consequent thereto the respondent concealing all such manipulation entered into a settlement agreement (page-165) assuring the redemption of mortgage property upon payment of outstanding liability within six months. The respondent despite such settlement agreement failed to liquidate its outstanding liability compelling, the financial institution to exercise its rights under section 15 of the Ordinance, 2001 by issuing notice of "public auction" in Daily 'DAWN" and "JANG"
3. (Pages 193 and 195). Upon issuance of such notices, one Ashraf Channa made a public notice (Page-197) intimating the public at large that he had purchased the mortgage property, leading to filing of the instant criminal complaint. It is contended by the learned counsel that since the respondent had manipulated the documents on behalf of the financial institution and thereafter deprived it from a valuable security rendering the loan unsecured, therefore, such act of the respondent of course is in respect of and in connection with the business of the bank and of course a scheduled offence exclusively triable by Special Court and the observation otherwise in the impugned order cannot sustain. Counsel has further in support of his contention placed reliance on the judgment of the apex Court in the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 Supreme Court 353) wherein the apex Court has defined schedule offence and has given extended meanings to the transaction in respect of or in connection with the business of the bank.
4. ' On the other hand learned Standing Counsel has just supported the impugned order without making any submission in support of impugned order, whereas, respondents Nos.1 to 4 despite issuance of repeated notices through Bailiff, TCS and publication in Daily Jang have failed to effect appearance.
5. ' Mr. Sohail Qasim learned counsel appearing for the respondent No,5 contends that since no offence whatsoever could be made out against respondent No,5, a statutory body with whom all companies are required to furnish detail of charge against their assets if registered and has no role to play in the entire offence, therefore, criminal complaint against respondent No,5/SECP was rightly dismissed. Mr. Shaukat Hayat without disputing such position contends that record of respondent No,5 would support the case of the applicant.
6. ' We have heard the learned counsel for the respective parties, perused the record with their able assistance and the case-law cited at the bar.
7. ' Prima facie from the record it appears that respondents have availed the finance facility from the applicant bank against deposit of Original Title Documents in respect of their property bearing No,F-524, S.I.T.E. Karachi and consequently executed Memorandum of Deposit of Title Deeds. The financial institution till-date holds the original title documents and has asserted that the documents on the basis of which its charge was redeemed and or the documents stating that the bank has lost original title documents are manipulated/forged by the respondents which of course leads to the conclusion that the respondents have deprived the applicant from a valuable security held by it against the advancement of the finance facility. In order to determine as to whether such manipulation allegedly made by the respondents could be termed as a transaction in respect of and in connection with the business of the -Bank and exclusively triable by the Special Court, it will be beneficial to reproduce the alleged manipulated documents which read as follows:-- ALLIED BANK OF PAKISTAN Saleh Mohd. Street Br. Kyc (0170)
8. "Dated 28-7-2004 TO WHOM IT MAY CONCERN It is to certify that MessrsTokai Industries (Pvt.) Ltd., have adjusted all of their liabilities and no amount is outstanding against their name.
9. Further we have no objection for vacation of our charge on assets of MessrsTokai Industries (Pvt.) Ltd., and redemption of General Power of Attorney executed in favour of us.
10. For Allied Bank of Pakistan Ltd.Saleh Muhammad Street Br. KarachiSd/- Chief Manager"
11. ALLIED BANK OF PAKISTAN LTD.
12. Saleh Mohd. Street Br. Kyc (0170)
13. KSMS/SB/2004 Dated:28-7-2004 The Secretary, S.I.T.E.
14. Karachi Subject:- NO OBJECTION CERTIFICATE Dear Sir, With reference to your N.O.C. No.Admn/2466/2870dated13-8-1995 issued by you in favour of Allied Bank of Pakistan Ltd., Saleh Muhammad Street Branch, Karachi.
15. We hereby confirm that Messrs Tokai Industries (Pvt.) Ltd. Plot No.F-524, S.I.T.E. Karachi have adjusted all of their liabilities and no amount is outstanding against them.
16. Further we have no objection for vacation of our charge on assets of Messrs Tokai Industries (Pvt.) Ltd. Plot No.F-524, S.I.T.E. Karachi.
17. For Allied Bank of Pakistan Ltd.
18. Saleh Muhammad Street Br. Karachi Sd/- Chief Manager Cc: Messrs Tokai Industries (Pvt.) Ltd., F-524, S.I.T.E. Karachi"
19. ALLIED BANK OF PAKISTAN LTD.
20. Saleh Mohd. Street Br. Kyc(0170)
21. Dated: August 10, 2004 To, Tokai Industries (Pvt.) Limited, F-524, S.I.T.E., Karachi.
22. Subject:- F-524, PLOT DOCUMENTS/ FILES Dear Sir, With reference to your letter dated 28th July 2004. We are sorry to inform you that the original documents/Files of plot mentioned above misplaced due to shifting of record from one place to another place. You are there fore requested to get certified copies of the documents of the above mentioned plot from concern departments.
23. We undertake that whenever original documents/files of the above plot found the same shall be returned to you. We are further clarify that there is no outstanding against the above mentioned plot by the Bank. THANKING YOU, Yours faithfully, For Allied Bank of Pakistan Ltd.
24. Saleh Muhammad Street Br. Karachi Sd/ - Chief Manager TOKAI INDUSTRIES (PRIVATE) LIMITED Dated: 18-9-2004 To, The Police Station, S.I.T.E. Karachi.
25. Subject:- ISSUE OF POLICE REPORT OR F.I.R. Reference: F-524, S.I.T.E. ORIGINAL DOCUMENTS/ FILES Dear Sir, We like to inform you that property original documents/files has been misplaced you are kindly requested to issue F.I.R. or police report.
26. Your immediately action will be highly appreciated. Thanking you, Yours faithfully, For TOKAI INDUSTRIES (PVT.) LTD."
27. ' Perusal of above reproduced letters reflects that they were manipulated with the sole intent of depriving the financial institution from recovery of its outstanding liability. There can be no two views that the manipulation of the letters allegedly issued by the financial institution have stripped off its financial stake of Rs,100 Million by making the financial facility unsecured and such manipulation prima facie appears to fall within the ambit of sections 467, 468 and 471, P.P.C.
28. Offences which have been enumerated in the Ordinance. 1984 as schedule offences. The Special Court in its impugned order did not hold that an offence under sections 467, 468 or 471, P.P.C. Is not made out but misled itself by holding that such manipulation does not indicate that the accused persons have allegedly committed any cheating, fraud or manipulation in respect of or in connection with the business of the bank, as the Special Court was of the view that unless there is some forgery and fabrication in the banking transaction the jurisdiction of the Special Court could not be invoked and by giving very narrow meaning to A the words "business of the bank" termed the manipulation as violation of terms and conditions of the agreement. The sole question which needs to be responded is as to whether the manipulation and use of documents by the accused persons allegedly executed by the financial institution to insecure the finance would be a transaction in respect of and in connection with the business of the bank and exclusively triable by the Special Court or not. In our opinion the Special Court misled itself by holding that its jurisdiction only extends to the cases where some monetary fraud is committed in the transaction such as withdrawal or deposit. We are afraid that we cannot endorse such view as such interpretation would not only narrow down the provisions of section 2(d) of Act 1997, but in-fact would choke the expression "transaction in respect of or "in connection with the business of bank".
29. ' In the ease of Karachi College Teachers Co-operative Housing Society v. Judicial Magistrate XVI Karachi East and another (2011 YLR 1825) though no loss was suffered by the banking company as the amount was withdrawn from the account of a customer society by one of its officer by forging signature of the authorized office-bearers of the society, yet a Division Bench of this Court while interpreting the provisions of section 2(d) of the Ordinance held that the offence of forging the cheque and withdrawing the amount from bank would clearly fall within the mischief of sections 408 and 420, P.P.C. And the fraud alleged to have been committed in respect of or in connection with the business of the bank as employed in the aforesaid provision, clearly brings the alleged offence within the ambit of scheduled offence, as defined thereby. The words "alleged to have been committed in respect of or in connection with the business of a bank" do not call for a narrow interpretation but embraces all such acts which pertains to banking transactions and withdrawal of an amount from a bank account is certainly and undoubtedly a banking transaction.
30. ' Likewise in the case of Ali Hussain and 2 others v. Presiding Officer Special Court for Offences in Respect of Banks Karachi and 3 others (PLD 1989 Karachi 157) a Division Bench of this Court while describing the object of the Ordinance IX of 1979 held as under: - "The object of Ordinance IX of 1979 is two fold, firstly to punish accused persons who are guilty of a scheduled offence and secondly to compensate the bank for the loss suffered by it on account of the commission of the offence by providing the payment of compensation. The object does not seem to he to provide any relief to an individual who may be aggrieved by an action of a bank employee."
31. ' In the said case while interpreting the provisions of section 2(d) i.e, scheduled offence which has been defined as an offence specified in the First Schedule to the Ordinance and the offence alleged to have been committed in respect of or in connection with the business of bank this Court held as follows:-- "A perusal of the above-quoted definition of the scheduled offence indicates that there are two ingredients which should be present in order to make an offence as a scheduled offence namely,
(i) that the offence should be specified in the First Schedule to the Ordinance, and (ii) the offence should have been committed in respect of or in connection with the business of a Bank. If either of the above two ingredients is missing in a case, the Special Court has no jurisdiction. In the instant cases the offences mentioned in the direct complaint find place in the First Schedule to the Ordinance and, therefore, the only question which requires consideration is as to whether the alleged offences have been committed in respect of or in connection with the business of the Bank."
32. ' The Court after holding that the alleged offence mentioned in the direct complaint found placed in the First Schedule to the Ordinance, while scrutinizing the alleged complaint on the touchstone of second ingredient i.e, as to whether the alleged offence has been committed in respect of or in connection with the business of the bank held as follows:-- "It is an admitted position that the Bank has not come forward with the allegation that its Manager has caused any loss to it in the aforesaid transaction of sales of pledged shares. On the contrary the Bank has filed the suit against respondent No,2 for the recovery of the balance loan amount on the assumption that the aforesaid sale of the pledged shares was normal. In this regard, it may also be pointed out that even respondent No,2 has claimed the damages for the alleged loss against the Bank and not from its Manager. If we were to read the definition of a scheduled offence given in section 2(d) of the Ordinance with the other provisions of the Ordinance, particularly, subsection (4) of 'section 6 which provides "Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the Bank in respect of which the offence was committed of compensation for the loss caused to it by the offence", it becomes evident that the object of the Ordinance is two fold, firstly to punish accused persons who are guilty of a scheduled offence and secondly to compensate the Bank for the loss suffered by it on account of the commission of the offence by providing the payment of compensation. The object does not seem to be to provide any relief to an individual who may be aggrieved by an action of a Bank employee. In the instant cases, the respondent No,2 has filed the direct complaint not for the purpose that the Bank should get the balance amount of its dues but to get the alleged accused punished as pointed out hereinabove.
33. ' We are, therefore, inclined to hold that the alleged offences in the instant cases do not fall within the ambit of section 2(d) as scheduled offences."
34. ' Whereas, in the case of Sikandar Ali v. The State (1989 PCr.LJ 614 Karachi) where the accused has forged an order of A.D.C. To Prime Minister of Pakistan for getting employment in a Bank. The Court came to the conclusion that the said offence was not committed in respect of or in connection with the business of the Bank as the forged order did not affect the business of the bank in any manner. The Court was of the view that the emphasis in section 2(d) of the Ordinance, 1979 is upon an offence committed in respect of or in connection with the business of a bank.
35. ' The apex Court in the case of A. Habib (Supra) has given an extended meaning to the word "scheduled offence" by laying down that all conceivable situation, link with the business of the bank, would make the offences mentioned in the schedule as scheduled offences. In the said case, the Apex Court held as under:- "The definition of scheduled offence as contained in section 2(d) of the Ordinance does include a rider to he to the offences which are mentioned in the schedule and which undoubtedly are alleged in this case. The rider is that those offences should have been alleged to have committed "in respect of or in connection with the business of bank". It needs to be emphasized that the expression "business of a bank" used in the definition would have to be given extended meaning on account of the use of two such further open ended expression which connotes very wide meaning for the words "business" and the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word "Business" as separate from the word "Bank". Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors dealings as well as dealings in trading and other enterprises are their business. There is no need to dilate upon the scope of the expressions "in respect of and "in connection with" any further."
36. 6 The intention being that all conceivable situation linked with the business of the bank, would make the offences mentioned in the schedule as scheduled offence. Thus to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences."
37. ' In order to ascertain as to whether a particular offence would be triable by the Special Court (Banks) as scheduled offence or not, the Court has to examine that the allegations which constitute such offence are in any manner linked with the business of the financial institution or not. While doing so it is to be kept in mind that with the passage of time and with the change in Banking Laws, the Financial Institutions have expanded their business as earlier the Bank use to deal in documents only but now though hypothetically but they deal in goods too. The forms of businesses which financial institutions/banking companies in addition to the business of banking which they ordinarily conduct may engage into following businesses as have been detailed in Part-II of section 7 of the Banking Companies Ordinance, 1962 which is reproduced herein below:-- "7. Forms of business in which banking companies mau engage.---(1) In addition to the business of banking, a banking company may engage in any one or more of the following forms-of business, namely:
(a) the borrowing, raising or taking up of money; the lending or advancing of money either upon or without security; the drawing, making, accepting, discounting, buying, selling, collecting and dealing in bills of exchange, hundis, promissory notes, coupons, drafts, bills of lading, railway receipts, warrants, debentures, certificates, scrips (participation term certificates, term finance certificates., musharika certificates, modaraba certificates and such other instruments as may be approved by the State. Bank and other instruments, and securities whether transferable or negotiable or not; the granting and issuing of letters of credit, traveller's cheques and circular notes; the buying, selling and dealing in bullion and species; the buying and selling of foreign exchange including foreign bank notes.; the acquiring, holding, issuing on commission, underwriting and dealing in stock, funds, shares, debentures, debenture stock, bonds, obligations, securities participation term certificates., term finance certificates, musharika certificates, modaraba certificates and such other instruments as may be approved by the State Bank and investments of all kinds; the purchasing and selling of bonds, scrips or other forms of securities participation term certificates, term finance certificates, musharika certificates, modaraba certificates and such other instruments as may be approved by the State Bank on behalf of constituents or others, the negotiating of loans and. Advances; the receiving of all kinds of bonds, scrips or valuables on deposit or for safe custody or otherwise; the providing of safe deposit vaults; the collecting and transmitting of money and securities;
(aa) the providing of finance as defined in the Banking Tribunals Ordinance, 1984:
(b) acting agents for any Government or local authority or any other person or persons; the carrying on of agency, business of any description including the clearing and forwarding of goods, giving of receipts and discharges and otherwise acting as an attorney on behalf of customers, but excluding the business of a managing agent or treasurer of a company;
(bb) acting as "modaraba company" under the provisions of the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 (XXI of 1980) ;
(c) contracting for public and private loans and negotiating and issuing the same;
(d) the effecting, insuring, guaranteeing, underwriting, participating in managing and carrying out of any issue, public or private, Government, municipal or other loans or of shares, stock, debentures, debenture stock or other securities or debenture stock of any company, corporation or association and the lending of money for the purpose of any such issue;
(e) carrying on and transacting every kind of guarantee and indemnity business;
(ee) purchase or acquisition in the normal course of its banking business of any property, including commodities, patents, designs, trade-marks and copyrights with or without buy-back arrangements by the seller, or for sale in the form of hire-purchase or on deferred payment basis with mark-up or for leasing or licensing or for rent-sharing or for any other mode of financing;
(I) managing, selling and realising any property which may come into the possession of the company in satisfaction or part satisfaction of any of its claims;
(g) acquiring and holding and generally dealing with any property or any right, title or . Interest in any such property which may form security or part of the security for any loans Or advances or which may he connected with any, such security;
(h) undertaking and executing trusts;
(i) undertaking the administration of estates as executor, trustee or otherwise;
(j) establishing and supporting or aiding in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit employees or ex-employees of the company or the dependents or connections of such persons; granting pensions and allowances and making payments towards insurance; subscribing to or guaranteeing moneys for charitable or benevolent objects or for any exhibition or for any public, general or useful object;
(lc) the acquisition, construction, maintenance and alteration of any building or works necessary or convenient for the purpose of the company;
(1) selling, improving, managing, developing, exchanging, leasing, mortgaging, disposing of or turning into account or otherwise dealing with all or any part of the property and rights of the company;
(m) acquiring and undertaking the whole or any part of the business of any person or company, when such business is of a nature enumerated or described in this subsection;
(n) doing all such other things as are incidental or' conducive to the promotion or advancement of the business of the company;
(o) any other form of business which the Federal Government may, by notification in the official gazette, specify a form of business in which it is lawful for a banking company to engage.
(2) No banking company shall engage in any form of business other than those referred to in subsection (1)."
38. 'In the instant case, the accused persons except respondent No,5 as alleged manipulated the documents to show that they had paid their entire liability and got their properties redeemed from the charge of the Bank and since creation of charge/mortgage to secure the loans/finances or advances of course is business of the bank as appears from clause (g) above, therefore, its redemption obviously is part of such business as such transaction has a direct nexus with mortgage and the business of the Bank, therefore, is exclusively triable by Special Court as scheduled offence. However, no case at all is made out against respondent No,5, an authority which under the law has performed its statutory duty by registering, or vacating the charge.
39. ' We in the circumstances set aside the impugned order and direct the trial court to bring the complaint on record and to issue process accordingly. However, we maintain the impugned order to the extent of respondent No,5 but for our own reasons.