PLJ 2013
[
Present:
Muhammad Qasim Khan, J.
MUHAMMAD ASIF
NAWAZ--Petitioner
versus
LEARNED
ADDITIONAL SESSION JUDGE/JUSTICE OF PEACE,
W.P. No. 10707
of 2012, decided on 16.5.2013.
Financial
Institutions (Recovery of Finances) Ordinance, 2001--
----S.
7(4)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Cheque
was issued for return a loan obtained from Bank--No criminal case could be
registered--Banks were debarred from taking advantage of S. 489-F, PPC in
presence of special law--Jurisdiction of Banking Court--Any financial
institution can avail remedy before any Court, but basic requirement is that such
remedy must be available to institution under law by which financial
institution had been established--When statute itself makes it clear that
offence is not cognizable then registration of criminal case by local police
could not be permitted by-law--PPC is general law, whereas Financial
Institutions (Recovery of Finances) Ordinance, is a special law and legislators
had enacted it in such a manner so as to had overriding effect of any general
enactment--Although by amendment in PPC, S. 489-F, PPC had been inserted after
promulgation of Ordinance, 2001 but such insertion would not give it an
overriding effect over special law that special law is passed before or after
general act does not change principle--Provisions of Ordinance, 2001, making
offences bailable, non-cognizable and compoundable,
were not brought under consideration--Petition was allowed. [Pp. 609, 610, 611 & 612] A, C, D & G
2013
CLD 738, 2013 CLD 508, PLD 2009 Lah. 541, rel.
Financial
Institutions (Recovery of Finances) Ordinance, 2001--
----S.
20(4)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonest issuance of cheque towards repayment of finance or fulfillment of an
obligation--No criminal case could be registered--Jurisdiction of Banking
Court--Jurisdiction only lies with Banking Court established under Financial
Institutions (Recovery of Finances) Ordinance and not before any other Court
until and unless same is provided by law, by which financial institutions is
established--Where special law is later, it will be regarded as an exception
to, or qualification of, prior general act, and where general act is later,
special statute will be construed as remaining an exception to its terms,
unless repealed expressly or by necessary implication--When amendment was not
made in Ordinance, 2001--Legislators explicitly made their intention clear that
with regard to matters between financial institutions, such enactment shall
hold the field and S. 489-F, PPC (dishonest issuance of cheque)
will be applicable to other persons in general except those covered by
Ordinance, 2001. [Pp. 610 &
611] B, E & F
Mr. Javed Iqbal Bhatti,
Advocate for Petitioner.
Mr. Mubashir Latif Gill, Assistant
Advocate General for Respondent.
Syed Wasim Haider, Advocate for
Respondents No. 3.
Date of hearing:
16.5.2013.
Order
Briefly the
facts of the case as unfolded in this writ petition are that Faysal Bank Limited through Relationship Manager (Ghazanfar Ali) filed an application under Section 22-A, Cr.P.C. before the learned Ex-officio Justice of Peace
seeking registration of case against the present petitioner, with a narration
that Muhammad Asif petitioner had obtained a loan
from the Bank and for its return had issued a Cheque
No. CA0022608054 dated 31.07.2011 valuing Rs.15,00,000/-,
the said cheque when presented for encashment, was
bounced. The learned Ex-officio Justice of Peace, vide order dated 15.06.2012
directed the SHO to record statement of said petitioner (respondent before
Court) and proceed in accordance with law. This order has been assailed through
the instant writ petition.
2. The contention of learned counsel for the
petitioner is that in the light of Financial Institutions (Recovery of
Finances) Ordinance, 2001, no criminal case could be registered. In support of
his arguments the learned counsel placed reliance on the case "Abid Mahmood Malik
versus Station House Officer, Police Station Margalla
and others" (2013 CLD 508) and with reference to the case "Muhammad Iqbal versus Station House Officer, Police Station Hajipura, Sialkot and 2 others" (PLD 2009 Lahore 541),
learned counsel contends that Banks are debarred from taking advantage of S.
489-F, PPC, in the presence of special law i.e. Financial Institutions
(Recovery of Finances) Ordinance, 2001, but this fact has been over-sighted by
the learned Justice of Peace before passing the impugned order dated 15.06.2012
rendered on the application of Respondent No. 3.
3. The learned Assistant Advocate General
assisted by learned counsel for the respondents, defended the impugned order
and argued that admittedly the Cheque was issued by
the petitioner, the same when presented in Bank for encashment was dishonoured, as such, the commission of a cognizable
offence was disclosed and the learned Ex-officio Justice of Peace after
considering the factual aspect, issued a valid direction, as such, the impugned
order does not suffer from any illegality or irregularity. The learned counsel
for the respondent bank further argued that taking cognizance is something
different as compared to the registration of case and the provisions of
Financial Institutions (Recovery of Finances) Ordinance, 2001 deal with
cognizance of offence but not deal with registration of
cases, therefore, the registration of case is not barred under this Ordinance.
In support of his contention the learned counsel placed reliance on the case
"Abdul Rauf Chaudhry
and 2 others versus The State and 2 others" (2013 CLD 738).
4. I have considered the arguments of learned
counsel for the parties and perused the available record with their assistance.
5. Earlier, Banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act, 1997 was promulgated and later, after
certain modification, the same was re-enacted as the Financial Institutions
(Recovery of Finances) Ordinance, 2001. This Ordinance specially deals with
matters arising between the Financial Institutions and its customers including
Guarantors, etc. Section 9(1)(b) of the Ordinance,
ibid, provides:--
"7. Powers of Banking
Courts.--
(1) Subject to the provisions of this Ordinance,
(a) -------------------------------
(b) in the exercise of its criminal
jurisdiction, try offences punishable under this Ordinance and shall, for this
purpose have the same powers as are vested in a Court of Sessions under the
Code of Criminal Procedure, 1898 (Act V of 1898):
Provided that a
................................
................................
................................
(4) Subject to sub-section (5), no Court other
than a Banking Court shall have or exercise any jurisdiction with respect to
any matter to which the jurisdiction of a Banking Court extends under this
Ordinance, including a decision as to the existence or otherwise of a finance
and the execution of a decree passed by a. Banking Court."
"(5) Nothing in
sub-section (4) shall be deemed to affect--
(a) the right of a
financial institution to seek any remedy before any Court or otherwise that may
be avail able to it under the law by which the
financial institution may have been established; or
(b) the powers of
the financial institution, 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 financial
institution or such Court immediately before the coming into force of this
Ordinance."
Section 7(4) of
the Financial Institutions (Recovery of Finances) Ordinance, 2001 clearly
postulates that no Court other than
6. Section 20 of the Financial Institutions
(Recovery of Finances) Ordinance, 2001 is the provision relating to certain
offences and its sub-section (4) deals with dishonest issuance of a cheque towards repayment of a finance or fulfillment of an
obligation which is dishonoured on presentation. The
punishment of said offence has been provided as one year or with fine or with
both. Therefore, it becomes quite obvious that in the matter, like the one in
hand, the jurisdiction only lies with the Banking Court established under the
Financial Institutions (Recovery of Finances) Ordinance, 2001 and not before
any other Court, until and unless the same is provided by law, by which the
financial institution is established.
7. The contention of learned counsel for the
respondent bank is that taking cognizance is something different as compared to
the registration of case and the provisions of Financial Institutions (Recovery
of Finances) Ordinance, 2001 deal with cognizance of offence but not deal with registration of cases, therefore, the registration of
case is not barred under this Ordinance. I am afraid this stance
advanced by learned counsel for respondent Bank is not considerable at all.
Section 20(6) of the Ordinance, ibid, read as under:--
"20.
Provisions relating to certain offences.--
(1) --------------------------------
(2) --------------------------------
(3) --------------------------------
(4) Whoever dishonestly issues a cheque towards re-payment of finance or fulfillment of an
obligation which is dishonoured on presentation,
shall be punishment 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.
(5) --------------------------------
(6) All offences under this Ordinance shall
be bailable, non-cognizable and compoundable."
The above
reproduced provision makes it abundantly clear that offences under this
Ordinance shall be bailable, non-cognizable and
compoundable and Section 154, Cr.P.C. comes in the
field where the commission of a cognizable offence is disclosed. But as
discussed above, when the Statute itself makes it clear that offence is not
cognizable then the registration of criminal case by the local police could not
be permitted by law. Even otherwise, the Pakistan Penal Code, 1860 is general
law, whereas, the Financial Institutions (Recovery of Finances) Ordinance, 2001
is a special law and the legislators have enacted it in such a manner so as to
have overriding effect of any other general enactment. A general law and a
special law on the same subject are statutes in pari materia and should, accordingly, be read together and
harmonized, if possible, with a view to giving effect to both. The rule is that
where there are two acts, one of which is special and particular and the other
general, which if standing alone, would include the same matter and thus
conflict with the special act, the special law must prevail since it evinces
the legislative intent more clearly than that of a general statute.
8. Although by amendment in PPC, Section 489-F,
PPC has been inserted after promulgation of Financial Institutions (Recovery of
Finances) Ordinance, 2001 but this insertion would also not give it an
overriding effect over special law, for the reason that the special law is
passed before or after the general act does not change the principle. Where the
special law is later, it will be regarded as an exception to, or a
qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an
exception to its terms, unless repealed expressly or by necessary implication.
Blackstone defines general law as a universal rule affecting the entire
community and special law as one relating to particular persons or things of a
class. And the rule commonly said is that a prior special law is not ordinarily
repealed by a subsequent general law. The fact that one is
special and the other general creates a presumption that the special is to be
considered as remaining an exception of the general, one as a general law of
the land, the other as the law of a particular case. If the legislators
had an intention otherwise, they could at the very beginning formulate or
afterwards could amend the Financial Institutions (Recovery of Finances)
Ordinance, 2001 in such a manner so as to bring this offence within the
definition of "cognizable" offence. In such circumstances, when the
amendment was not made in the Ordinance, ibid, the legislators explicitly made
their intention clear that with regard to the matters between financial institutions
and their customers, this enactment shall hold the field and Section 489-F, PPC
(dishonest issuance of cheque) will be applicable to
all other persons in general except those covered by the Financial Institutions
(Recovery of Finances) Ordinance, 2001. The purpose by not amending the
Financial Institutions (Recovery of Finances) Ordinance, 2001 appears to be
that normally in any case of loan from financial institution, the loans are
protected by mortgage, warranties covenants made by or on behalf of the customer
to a financial institution, including representations, warranties and covenants
with regard to the ownership, mortgage, pledge, hypothecation or assignment of,
or other charge on assets or properties, and the financial institution can
recover the amount by adopting appropriate process under any of the above mode.
The case law referred by learned counsel for the petitioner i.e. "Abid Mahmood Malik
versus Station House Officer, Police Station Margalla
and others" (2013 CLD 508) and "Muhammad Iqbal
versus Station House Officer, Police Station Hajipura, Sialkot
and 2 others"
(PLD 2009 Lahore 541), by all force is applicable to the facts and
circumstances of the instant case, whereas, the citation referred to by learned
counsel for the respondent Bank i.e. "Abdul Rauf
Chaudhry and 2 others versus The State and 2
others" (2013 CLD 738) is based entirely on different footings, therefore,
have no applicability to the instant case and even otherwise, the provisions of
the Financial Institutions (Recovery of Finances) Ordinance, 2001 making
certain offences bailable, non-cognizable and
compoundable, were not brought under consideration in the said case.
9. For what has been discussed above, this writ
petition is allowed and the impugned order dated 15.06.2012 passed by learned
Additional Judge/Ex-officio Justice of Peace,
(R.A.) Petition allowed