This is a petition under section 561-A, Cr.P.C. Seeking cancellation of F.I.R. No,180, dated 17-3-2001 registered under sections 420, 468 and 471, P.P.C., at Police Station Civil Lines, Rawalpindi at the instance of the Citibank.
2. The petitioner has obtained loan from the Citibank. Against some payments which he had to make in respect of his loan, he had issued cheques. But as these cheques were dishonoured, the bank sought plural actions against him. One of which was through the F.I.R. Lodged at the local police station. While the second was through filing of suit before the Banking Court under section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
3. The Banking Court granted him leave to defend. Initially this was conditional to furnishing of the bank guarantee but this order was modified by an Honourable Bench of this Court vide order dated 28-2-2001. Because of which the petitioner was directed to furnish security against the suit amount while he was to be given leave to defend instead of the bank guarantee already ordered. This matter is sub judice before the Banking Court.
4. While lodging the F.I.R., it was said that as the cheques had bounced, prima facie offence under sections 420, 468 and 471, P.P.C., was made out. The police after registering the case started chasing the petitioner who then filed the present petition asking for the cancellation of the F.I.R.
5. The main ground urged before this Court was that no offence under sections 420, 468 and 471, P.P.C. Was made out as this was a banking dispute simpliciter and the Citibank has already sought a remedy before the Banking Court for recovery of the loan. That this being a civil liability a criminal action was not envisaged nor was there any fraud committed nor any documents forged for the purposes of cheating. It was also stated that an offence under section 420, P.P.C. Was also not made out. That as the dispute is purely of a civil nature, it will be adjudicated upon by the Banking Court already seized of the matter.
6. Notice was issued to the respondent side when the learned counsel for the Citibank candidly admitted that the F.I.R. Under reference was not maintainable in law and if at all any offence was made out, the bank shall seek its remedy under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Therefore, he had no objection to the cancellation of the F.I.R. The police too has assured that they will not proceed with the F.I.R. And would seek its cancellation.
7. According to learned counsel for the petitioner, the trend to harass bank loanees through lodging of the F.I.Rs, under the general law is now on the increase and this tendency has to be checked through law.
8. In this connection, he has also made a reference to another F.I.R. Which had been registered at the instance of the Citibank which became the subject-matter of W.P. No,1874 of 2000 and in which case this Court directed for the cancellation of the F.I.R.
9. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act No,XV of 1997) brought about a change in the similar law which came about in 1979 and the Banking Tribunals Ordinance which came about in 1984. Section 7 of the Act defines the powers of a Banking Court and which reads as under: "Powers of Banking Courts.--(1) Subject to the provisions of this Act, a Banking Court shall---
(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) in the exercise of its criminal jurisdiction, try offences punishable under this Act and shall, for this purpose, have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898): Provided that a Banking Court shall not take cognizance of any offence punishable under this Act except upon a complaint in writing made by a person authorised in this behalf by the banking company in respect of which the offence was committed.
(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Act, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) All proceedings before a Banking Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and a Banking Court shall be deemed to be a Court for purposes of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) Subject to subsection (5) no Court other than a Banking Court shall have to exercise any jurisdiction with respect to any matter to. Which the jurisdiction of a Banking Court extends under this Act, including a decision as to the existence or otherwise of a loan or finance and the execution of a decree passed by a Banking Court.
(5) Nothing in subsection (4) shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court or otherwise that may be available to it under the law by which the banking company may have been established; or
(b) the powers of the banking company or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any banking company or such Court immediately before coming into force of this Act.
(6) All proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), or under the Banking Companies (Recovery of Loans, Advances, Credits or Finances)
Ordinance, 1997 (XXV of 1997), or any Banking Tribunal under the Banking Tribunals Act, 1984 (LVIII of 1984), or any other Court including a High Court shall stand transferred to or be deemed to be transferred to the Banking Court having jurisdiction. On transfer of proceedings under this subsection, a Banking Court shall require the attendance of the parties through notices issued in accordance with the procedure for service of summons or notice laid down in subsection (3) of section 9.
(7) In respect of proceedings transferred to a Banking Court under subsection (6) the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court or Tribunal from which the proceedings were transferred."
10. Section 19 relates to offences which may be triable by a Banking Court and section 19(4) relates to dishonest issuance of dishonoured cheques and makes this an offence while prescribing a punishment for the offence which reads as follows: "(4) Whoever dishonestly issues a cheque which is dishonoured 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 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."
11. Such matters therefore, in view of sections 7 and 19(4) of the Act are only referable and triable under the Banking Companies (Recovery of Loans, Advances, Credits_and Finances) Act, 1997 by a Banking Court. And as this is special Act, it will eclipse corresponding provisions under the general law which is the Pakistan Penal Code.
12. The purpose behind the bestowal of jurisdiction to the Banking Court in such-like matter is obvious. Because a Banking Court with the powers it has is in a better position to adjudge whether there has been dishonesty in the issuance of the dishonoured cheques. The police, therefore, cannot proceed in such-like matters by itself. The Banking Court is also in a better position to decide whether the matter was purely of a civil nature or besides being one of a civil nature called for punishment prescribed under section 19(4) of the Act.
13. As the jurisdiction of the police acting under the general law is ousted because of the special law i,e,, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, therefore, proceeding further with the F.I.R. Or allowing it to exist will only be a wastage of time and abuse of process. Reliance in this connection may be placed on Miraj Khan v. Gul Ahmad and 3 others 2000 SCM R 122.
14. This Court, therefore, accepts the petition and cancels the F.I.R. In question and directs the police not to take law into its own hands in the future in cases covered by section 7 read with section 19(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.