' GULBAZ KHAN, J.-- Two separate challans under sections 409, 420, 468 and 471, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947, out of the same F.I.R. No,89, dated 27-12-1980, were submitted in Court of Special Judge (Central). The petitioner was granted bail in both the cases in June, 1981. The cases were at the stage of evidence. Ordinance IX of 1984, (Offences In Respect of Banks) (Special Courts) Ordinance 1984), was promulgated with effect from 23-2-1984. By virtue of subsection (4) of section 7 of Ordinance 1984, the two cases pending against the petitioner before the Special Judge stood transferred to the Special Court constituted under the Ordinance. In view of subsection (7) of section 4 of the Ordinance, the bail granted to the petitioner in the two cases stood cancelled. The petitioner made two separate applications before the Special Court. He was allowed bail in one case in respect of the amount of Rs,2,61,642 advanced to Veterinary Medicines Limited, Lahore. He was declined bail in the other case, where there were four allegations. It was observed by the learned Special Court in the impugned order that the allegation in respect of Rs,2,70,000 paid by Sh. Fazal Hussain to the petitioner did not appear to be adequately proved. As regards the other three allegations, the learned Special Court found sufficient evidence against the petitioner connecting him with the commission of offences.
2. One of the allegations is that he transferred Rs,8,74,100 from the accounts of seventeen persons to the accounts of seven other persons and on coming to know about the arrival of the Inspection Team, he reversed those entries.
' Second allegation is that he made a payment of Rs,3,40,000 against the deposit of two cheques by one Hamid Saeed and when those cheques were presented to Habib Bank, Gulberg Branch, Main Market, Lahore, the same were dishonored.
' The third allegation is that he advanced Rs,11,54,800 unauthorized to some account holders.
3. It is an admitted fact that the bank has not suffered any loss in the aforesaid transactions.
According to the first allegation, the entries made in favour of seven account-holders were reversed in favour of seventeen account-holders from whose accounts the amount had been drawn. As regards the second allegation the amount of Rs,3,40,000 given to Striders Corporation against the deposit of two cheques, has been received back by the bank. Similarly, the amount of Rs,11,54,800 advanced to the various parties has been received back.
4. Offence under section 409, P.P.C. Is made out when a person commits criminal breach of trust in respect of certain property which is entrusted to him or over which he has dominion in his capacity as a public servant or in the way of business as a banker etc. Criminal breach of trust has been defined in section 405, P.P.C. It is provided therein that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.
5In order to prove the case of criminal breach of trust, the prosecution has to prove firstly, that the property had been entrusted to the accused or that the accused had dominion over the property; secondly, that the accused dishonestly misappropriated or converted to his own use that property, or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust was to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffered any other person so to do.
Unless the prosecution proves that the accused had the dishonest intention, offence of criminal breach of trust is not made out. Every breach of trust is not an offence. It may be intentional without being dishonest or it may appear dishonest being really so. Every breach of trust in the absence of mens rea, is not criminal. Offence of criminal breach of trust was intended to punish an offence of which dishonesty is the essence. Every breach of trust gives rise to a suit for damages but it is only when there is an evidence of mental act of fraudulent misappropriation that the commission of embezzlement of amount becomes a penal offence punishable as criminal breach of trust. It is the mental act of fraudulent misappropriation that distinguishes an embezzlement amounting to a civil wrong from the offence of criminal breach of trust. The Court should not be used for enforcing civil claims and the parties should not be encouraged to resort to the criminal Courts in cases in which the point at issue between them is one which can more appropriately be decided by a civil Court. The tendency on the part of the litigants to do so should be checked by criminal Courts who should be on their guard against lending their aid to such procedure. A clear distinction exists, between criminal and civil liabilities. In cases referred to above, there is no allegation that the petitioner dishonestly misappropriated or converted to his own use the amounts of the bank. The prosecution did not show that the petitioner dishonestly used or disposed of property in violation of any direction of law prescribing the mode in which such trust was to be discharged. The prosecution equally failed to show that the petitioner dishonestly used or disposed of the bank amount in violation of any legal express or implied contract which he had made touching the discharge of such trust. No document was produced to show that the petitioner could not make advances to bank accountholders. It was the case of the petitioner that he had made certain advances to various parties but he did not do so dishonestly. It is yet to be proved by the prosecution by leading evidence that the petitioner was guilty of criminal breach of trust and forgery. We cannot agree with the learned Special Court that there are reasonable grounds to believe that the petitioner is pirma facie guilty of offence falling under B the first schedule of Ordinance IX of 1984.
' For the reasons stated above, we allow bail to the petitioner in the sum of Rs,60,00,000 (Rupees sixty lass) with one surety in the like amount to the satisfaction of A.C. City/Duty Magistrate, Lahore.
' Any observation made in this order shall be without prejudice to the merits of the case.