IN THE HIGH COURT OF SINDH, KARACHI

Crl. Revision Application No.62 of 2009

Present:

Mr. Justice Sajjad Ali Shah

Mr. Justice Nisar Muhammad Shaikh, JJ

Date of hearing         :           18^th March 2010

Applicants                  :           Imran Mehmood Butt and Naseem Anwar

through Mr. Khalid Jawed Khan, Advocate.

Respondent               :           The State through Mr. Rizwan Ahmed                                                        Dodani, Standing Counsel.

Complainant              :           Syed Arshad Hussain through Mr. M. M.                                        Tariq, Advocate.

O R D E R

SAJJAD ALI SHAH, J : Through this Application applicants Imran Mehmood Butt and Naseem Anwar seek quashment of proceeding emanating from Crime No. 29/2006 under Section 420, 468, 471, 34 PPC of FIA Crime Circle, Karachi, pending before Special Court (Offences in respect of Banks) by way of Special Case No. 26/2006 titled as “The State Versus Imran Mahmood Butt and another”.

            Briefly, an ex-employee of the applicants lodged a complaint alleging therein that the applicants who are running their business of towel manufacturing and export under the name and style of “Tulip towel Industry” with criminal and common intention in order to avoid  the payment of general sales tax leviable on the sale of their products opened fictitious bank accounts with Bank Al-Habib, Bank Al-Falah, Metropolitan Bank and United Bank Limited in the names of Raja Sher Muhammad and Muhammad Hanif without their consent and by forging their signature and thereafter dishonestly encashed a number of cross cheques favouring M/s. Tulip Towel Industry by depositing such cheques in the aforestated fictitious accounts and thereby committed an offence of fraud and forgery falling within the jurisdiction of Special Court. After formal inquiry Crime No.29/2006 was registered on 18.10.2006 and after investigation a formal challan was filed against the applicants before the Special Court (Offences in respect of Banks).

            Mr. Khalid Javed Khan, Learned Counsel for the Applicants contended that bare reading of the allegations leveled against the applicants makes it abundantly clear that the offence if any does not fall within the jurisdiction of Special Court as no offence has been committed in respect of or in connection with the business of the bank, therefore, the proceedings are liable to be quashed. It was next contended that the offence if any regarding the evasion of general sales tax was thrashed out by the Collectorate of Custom, Sales Tax and Central Excise (Adjudication) Karachi holding the applicants liable to pay sale tax on the supplies of Rs.7,32,000/-, followed by imposition of penalty, which stands paid and the criminal liability, if any, due to evasion of General Sales Tax does not fall within the domain of Special Court (Offences in respect of Banks). Per Learned Counsel, since there are no allegations whatsoever that any of the banks named in the aforestated crime suffered any loss of any kind nor there are any allegation that any fraud or cheating occurred in relation to or in respect of the banks, therefore, neither any schedule offence has been committed nor the Special Court is competent to try and punish the applicants. It was lastly contended that though the allegation against the applicants in the crime as well as in challan appears to be that the applicants had opened accounts in the name of their employees without their consent and by making their fake, forged signatures but the statements of the employees as available on record negate such allegations. In support of his contention that in cases where the alleged offence is neither in respect of nor in connection with the business of a bank the proceedings before the Special Court (Offence in respect of Bank) cannot sustain, reliance has been placed on the Judgments of this Court in the cases of (1) The State versus Aizaz Ahmed and others (1986 P.Cr.L.J. 561), (2) Sikandar Ali Versus the State (1989 P.Cr.L.J. 613), (3) Shakeel Ahmed Rashidi Versus The State (1989 P.Cr.L.J. 1475) and (4) Muhammad Hashim Versus Presiding Officer Special Court (Offence in respect of Bank) Sindh at Karachi and 7 others (2006 P.Cr.L.J. 1886).

            On the other hand M/s. Rizwan Ahmed Dodani, Standing Counsel and M. M. Tariq for the Complainant have opposed the quashment on the ground that the applicants had opened various accounts in the name of their employees without their consent and by making their fake, forged signatures and thereafter had encashed number of cheques favouring M/s. Tulip Towel Industries in the said accounts thereby committed an offence exclusively triable by Special Courts (Offences in respect of Banks) and therefore, the proceeding initiated are competent and the trial Court has rightly declined quashment by impugned order dated 01.04.2009.

            We have heard the Learned Counsel for the respective parties and have perused the record as well as the case law cited at bar.

            The scrutiny of the record reflect that the instant crime was registered upon a written complaint of a disgruntled employee of the applicants who after termination of his service made certain disclosures which by virtue of his office were in his knowledge. It is not the case of the complainant that the applicants had operated a fake account in his name with his forged signature but the allegation is in respect of other employees viz. Muhammad Hanif, Meer Mahmood Ali and Sher Muhammad. The scrutiny of the record reflects that the investigating officer recorded the statements of Muhammad Hanif and Meer Mahmood Ali, employees of the applicants under Section 161 Cr.P.C. wherein they have admitted to have opened and operated the accounts under the directions of the applicants. Following paragraphs of their statements are very essential for the determination of the controversy:

STATEMENT OF MUHAMMAD HANIF

“It is disclosed that in above factory one Sher Muhammad an old employee was working with me and an account opened in his name at Bank Al-Habib was maintaining / operating by Mr. Naseem Anwar owner/partner of M/s. Tulip Towels. Mr. Sher Muhammad Became seriously ill and wants to leave for his native place i.e. Mansehra, therefore, his account was closed on the directions of Naseem Anwar and Imran Mehmood Butt and on their directions accounts in the name of Mir Mehmood Ali and in my name were also opened in Bank Al-Habib and Bank Al-Falah respectively. But the accounts were maintained and operated by both the above partners of firm M/s. Tulip Towels.

It also disclosed that Mr. Naseem Anwer was the beneficiary of the account as all credit/debit were made by him. He kept the cash/cheque books in his custody and as and when he needed, he used to send me or any other employee of factory to the bank for the purpose of depositing cheque(s) or withdrawal of amount through cheques on which he sued to obtain signatures of account holder.”

STATEMENT OF MEER MAHMOOD ALI

“In above factory one Sher Muhammad an employee was working with me and an account No.1006-008-001750-01-0 was in his name at Bank Al-Habib Bank Site Branch which was maintaining/Operating by Mr. Naseem Anwar & Imran Mehmood owner/Partner of M/s. Tulip Towel. Mr. Sher Muhammad become seriously ill and wants to leave for his native place i.e. Mansehra.

Therefore, account opening form was signed by me and I and Sher Muhammad along with Mr. Naseem Anwar and Imran Mehmood visited Bank Al-Habib SITE Branch, Karachi before the Manager where Sher Muhammad submitted Application to close his account. The account opening form duly filled in my name presented to the Manager. The account Sher Muhammad was closed and a Pay Order No.429142 dated 29/10/02 for Rs.378165.32 was prepared of all balance amount of his account. On the basis of said pay order account No. 1006-008-006974-01-0 was opened in my name.

I also disclose that Mr. Naseem Anwar & Imran Mehmood were the beneficiary of the account as all credit/debit were made by them. They kept the cash/cheque books in their custody and as and when they needed they used to send me or any other employee of factory to the bank for the purpose of depositing cheque(s) or withdrawal of amount through cheques on which he used to obtain my signatures.”

Perusal of the above reproduced statements reflect that the employees of the applicants have not only unequivocally accepted the opening of the accounts in various bank but their operation i.e. deposits and withdrawals though the beneficiaries of such accounts were applicants. In view of such statement the allegations of opening the accounts by the applicants in the name of their employees without their consent by making their fake, forged signatures totally appears to be false, and prosecuting  applicants on such allegation would amount to abusing the process of the Court.   

            As to the deposit of cheques in the name of M/s. Tulip Towel Industries in the account of different employees at the instance of the applicants it has come on record that the cheques were bearer and could have been validly deposited in the accounts of the applicants’ employees and for this very reason neither the concern officers of the Bank who accepted such deposit nor the account holders were implicated. In view of this position the offence if any at the most could be regarding evasion of general sales tax or other revenue payable to the exchequer by operating benami account. However, there is nothing on record to show that any schedule offence in respect or in connection with the business of the bank has been committed by the applicants conferring jurisdiction upon Special Courts (Offences in respect of Banks).

            In the case of Sikandar Ali (supra) this Court after examining the provision of Order 1984 the purpose for which this order was promulgated observed as follows:-

“9.        The preamble of the said Ordinance would indicate that it was an Ordinance to provide speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto. What is incidental in any given case depends upon the main legislation and the circumstances of the particulars case.

10.       The Special Court constituted for the trial of certain offences committed in respect of or in connection with the business of a bank, is competent to try such offences only. A Special Court cannot assume jurisdiction in disregard to the provisions of Section 2(d) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. The omission to raise objection, acquiescence or even consent cannot invest a Court with jurisdiction which it has not.”

Since we have already come to the conclusion that no offence in respect of or in connection with the business of the bank has been committed, therefore, the proceedings before the Special Court (Offences in respect of Banks) are without jurisdiction and, therefore, are quashed.

             JUDGE

            JUDGE

Dated ________________