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Criminal Miscellaneous No. 5 of 1984, in Case No. 166 of 1984, decided on 22nd September, 1984.

-----Ss. 2(d), 4(1) a (8)--Penal Code (XLV of 1860), S. 409- Jurisdiction--Special Court--Only Scheduled offences committed either in respect of a bank or in connection with business of a bank triable by Special Court--Offences in respect of bank, held, meant such offences as hit bank or its business financially or otherwise or were likely to hit either of them in that way--When these conditions were satisfied, Special Court would get jurisdiction to try persons accused of such offences. ---[Jurisdiction).

---Ss. 2(d), 4(1) a 4(6)--Penal Code (XLV of 1860), Ss. 420, 467 & 471--Jurisdiction--Special Court--Accused officials of Department of Director of Audit and Accounts Works, charged by Special Judge (Central) .for offence under S. 467, Penal Code regarding forgery of bills and offence under S. 471, Penal Code, regarding their having submitted these bills knowing them to be forged and for offence under S. 420, for having on basis of said forged bills got issued cheques favouring bogus firms and having withdrawn amounts of cheques, from bank and having thus cheated Department--Offence under S. 420, P.P.C. not being a scheduled offence, offences of forgery punishable under S. 467, Penal Code, and use of forged bills as genuine knowing them to be forged, punishable under S. 471, Penal Code, neither committed in respect of a bank nor in connection with business of bank but committed in office of Director Audit and Accounts to defraud officers and to cheat 'department and there existed) no nexus, no bond or link, between offence of forgery of bills and use of forged bills as genuine in office of Director on one hand and business of bank on other--Special Court, held, had no jurisdiction to try persons accused of such offences----Cases returned to Special Judge (Central), for trial.- [Jurisdiction].

---S. 2 (d)--Word "connection" in expression "in connection with" used in S. 2(d) of Ordinance, held, envisaged a link which must be direct like cause and effect and not remote.--[Words and phrases].

Busudeu v. Rex A I R1949 All. 513 ref.

----Ss. 2 & 4--Penal Code (XLV of 1860), Ss. 467 & 471--Special Court Jurisdiction--Offence of forgery of cheques and presentation of forged cheques as genuine not in connection with business of bank and forgery of cheques or use of forged cheques not linking business of bank- Cheques in question signed by Officers of Department who had authority to do so and banks paying money on basis of cheques--Prosecution not disputing signatures of Officers /drawers on cheques so as to enable department to charge bank with wrong payment and claim reimbursement--Bank even not complainant and not suffering in any way on account of any act of accused--Money drawn from bank placed at disposal of department and cheque book out of which cheques in question issued also belonged to Department--Offences under S. 467 and 471, Penal Code, in respect of forgery of cheques and use of forged cheques, held, were not, offences in connection with business of bank and they were not Scheduled offences triable by Special Court.

---Ss. 2(d), 4(1) & 4(6)--Special Court--Jurisdiction--Commission of forgery of cheques outside bank in furtherance of object of drawing money from bank, held, would not be conclusive to show that offence committed was trial by Special Court.--[Jurisdiction].

---Ss. 2 & 4--Special Court--Jurisdiction--Special Court, held, could not travel beyond four corners of statute which created it Crucial point to determine jurisdictional question held, was whether offences were in respect of bank or it connection with business of bank.- [Jurisdiction].

Nisar Qutab for Petitioner.

Sardar Nazar Hussain Dogar for the State.

Date of hearing: 22nd September, 1984.

Five cases namely Case No. 128 of 1977 to 132 of 1977 of the Court of Special Judge (Central), Lahore were sent by the said Court to this Court for trial and disposal on the ground that allegations levelled in these cases are covered by the provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) (hereinafter to be called Ordinance). These cases were registered in this Court as cases No. 166 of 1984 to 170.of 1984, respectively. All these challan cases arose out of one F.I.R., namely F.I.R. No. 394 of 1968 of Police Station Old Anarkali, Lahore.

2. Mushtaq Hussain Shah and accused in Cases Nos. 128/77, 130/77 and 132/77 of the Court of the Special Judge (Central) (Cases Nos. 166/84, 168/84 and 170/84 of this Court) has filed an application Criminal Miscellaneous No. 5 of 1984 in Case No. 166/84 of this Court for the return of said three cases to the Court of Special Judge (Central) on the ground the offences alleged to have been committed in the said cases do not relate to the business of the bank and this Court had, on that ground, no jurisdiction to try these cases: This order will dispose of the said application and decide whether the said three cases are to be returned to the Court of the Special Judge (Central) or retained by this Court for trial. Since the other two uses, namely, Cases Nos. 129/77 and 131/77 of the Court of Special Judge (Central) (Cases Nos. 167/84 and 169/84 of this Court) arise out of the same F.I.R. and contain similar facts I have taken suo motu notice of those and would decide in this order the fate of the said two cases also as regard the venue of their trial.

3. The facts of these cases as given by learned counsel for the accused-petitioner and not controverted by the Special Prosecutor are that a firm of Government contractors, Associated Cement Co. by name, had supplied material to the Government and submitted their bills in the office of the Director Audit and Accounts Works, Lahore. However, the amounts claimed in the said bills were increased to huge sums and for the name of A.C. C. the names of bogus firms were substituted. Other bogus bills were also submitted on behalf of bogus firms. All the said bogus bills were treated as genuine knowing them to be forged documents and in consequence, cheques were allegedly prepared by absconder accused Parvaiz Akram, cheque writer of the office of Audit and Accounts Works Department fraudulently and dishonestly in the name of said bogus firms. These cheques were allegedly initialled by accused-petitioner Mushtaq Hussain, auditor of the office of Audit and Accounts Works Department fraudulently and dishonestly. Thereafter the cheques were signed by officers competent to do so and were issued to the said bogus firms. On receipt of these cheques, these were submitted in banks and were got encashed by accused Ahmad Ali Siddiqi, Bashir Ahmad, absconder Mushtaq Ahmad, absconder Rhurshid Ahmad, members of the public, who had already opened accounts in the banks in the names of the said bogus firms. The sums thus withdrawn from the banks were misappropriated.

4. Learned Special Judge (Central) has expressed the view that the object of the accused was to obtain money from the banks and in order to achieve this purpose, vouchers and cheques had been forged and the commission of offences of forgery formed part of the same transaction committed in furtherance of the aforesaid common object of drawing money from the banks and., therefore, these five cases were covered by the provisions of the Ordinance.

5. Submission of learned counsel for the petitioners in these cases is that the forgery had not been committed in the bank and the same had been committed in the bills submitted by the A.C.C. to the office of the Director, Audit & Accounts Works Department, Lahore, and on the basis of these forged bills cheques signed by the officers of the department authorized to do so had been issued and payments made by the bank on the basis of said cheques were valid and, therefore, no offences in respect, or in connection with the business, of the balk had been committed.

6. Submission of learned Special Prosecutor, however, is that the cheques had been issued on the basis of forged bills and fell within the definition of false documents as contained in section 464 of P.P.C. and since money had been withdrawn from the banks on the basis of said false documents, namely, the cheque, the offence under section 471, P.P.C. committed in this case and in four other cases were in respect of the business of the bank and, therefore, this Court alone has jurisdiction to try these cases.

7. I have given my serious thought to the points raised. As shown by subsection (1) of section 4 of the Ordinance, scheduled offences are exclusively triable by this Court while subsection (6) of the said section lays down by way of command of law that this Court shall not try an accused in respect of a non-scheduled offence, found during trial, to have been committed by the accused and shall try him only for such offence, if any, as in a scheduled one. A "scheduled offence" has been defined in section 2(d) of the Ordinance. It runs as under:-

"scheduled offence" means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank."

In other words scheduled offence is an offence enumerated in First Schedule and committed either in respect of a bank or in connection, with the business of a bank. The offences of P.P.C. enumerated in First Schedule of the Ordinance are offences under sections 403, 406, 408, 409, 467, 471, 472, 473, 475 and 477-A and any attempt or conspiracy to commit or any abetment of any of the aforesaid offences. However, 1 under mandatory conditions laid down in the latter part of section 2(d) of the Ordinance, the said offences or anyone of the said offences should be such as had been committed either in respect of the bank or in connection with the business of the bank. Now offences in respects of the bank and offences in connection with the business of the bank in my opinion mean such offences as hit the bank or its business financially or otherwise or are likely to hit either of them in that way. It is only when these conditions are satisfied that this Court gets the jurisdiction to try persons accused of such offences.

8. I have scanned these five cases in the light of the above definition of a scheduled offence. On the basis of the facts of these five cases, the accused were charged by the Special Judge (Central) for offence under section 467, P.P.C., regarding forgery of bills and offence under section 471, P.O. C. regarding their having submitted these bills knowing them to be forged and for offence under section 420, P.P.C. for having on the basis of said forged bills got issued said cheques favouring said bogus firms and having withdrawn the said amounts of cheques from the bank and having thus cheat the department. Offence under section 420, P.P.C. does not fall in the First Schedule and is not a scheduled offence and as such is not triable by this Court. The forgery committed in the bills submitted to the Director, Audit and Accounts Works Department which according to the prosecution had taken place either outside or inside the office of Director of Audit and Accounts Works Department, Lahore, was not meant to play fraud upon the bank but was made to defraud the officers of the said department. Submission of these forged bills and commission thereby of offence of use by the accused of the bills as genuine knowing them to be forged which also took place in the said office was designed to cheat the department and not the bank. The offence of forgery of bills which is punishable under section 467, P.P.C. and use of said forged bills as genuine knowing them to be forged which is punishable under section 471, P.P.C. were thus not offences committed in respect of a bank. These were not even offences in connection with the business of the bank as obviously there was no nexus, no bond or link between the offence of forgery of bills and use of these forged bills as genuine in the office of Director of Audit and Accounts Works, Lahore on the one hand and business of the bank on the other.

9. The cheques may be covered by the definition of a false document as contained in clause thirdly of section 464, P.P.C. read with last three illustrations to the main section and the offence committed in getting signatures of the competent officer on those may fall under section 467, P.P.C. But presumably there was no evidence before the Court of he Special Judge (Central) to enable it to frame a charge in that regard which, as visualized by section 265-D, Cr. P.C. is framed after looking into the police report, papers on the challan file and statements of the witnesses before the police. In any way, even if there was any evidence to that effect, the said offence under section 467, P.P.C. which is said to have been committed in the premises of the office of the Director of Audit and Accounts Works Department," Lahore, was manifestly not an offence in respect of the bank. It was clearly one in respect of the office of the Director of Audit and Accounts Works Department as it was meant to play fraud upon the said department and not upon the bank.

10. The said offence under section 467, P.P.C. was not in connection with the business of the bank either. In Busudeu v. Rex A I R 1949 All. 513 while interpreting the expression "connected with" used in Item No. 1, List II, Schedule VII to Government of India Act, 1935, it was held that connection envisaged by the said item must be direct and clear as between cause and effect and not remote. It was further held that expression "connected with" must be considered to imply a substantial and direct connection and not a fanciful and highly problematic connection. Having taken into consideration the purpose of the Ordinance, and the provisions it contains, I am of the view that the said interpretation of the word "connection" applies equally well to the said word as used in section 2(d) of the Ordinance and accordingly held that the word "connection" in the expression "in connection with" in the said definition of schedule offence envisages a link which is direct like cause and effect and not remote. The link of the said offence with the business of the bank was not of cause of effect and was remote. On better counsel prevailing, the culprits could have kept G the forged cheques with them and not presented them in the bank. Any injury to the business of the bank was , not the natural effect of the said forgery but depended for its happening upon the said cheques in the bank.

11. Furthermore, the said offence of forgery of said cheques was not in connection with the business of the bank also because the said forgery of the cheques did not hit the business of the bank. The cheques in question were signed by the officers of the department who had the authority to do so. The bank had thus paid money on the basis of the cheques which had been duly signed by the officers authorised to do so. It is not the case of the prosecution that the signature of drawer on the said cheques were not of officers competent to do so, so as to enable the department to charge the bank with wrong payment and claim re-imbursement of the said sums of money from the bank. The bank is not even complainant in these cases as .it did not suffer in any way on account of any act of the accused and H had no complaint against them. The money which had been drawn from the bank was the one which had been placed at the disposal of the Director of Audit and Accounts Works Department and the cheque book out of which said cheques had been issued also belonged to the Director of Audit and Accounts Works Department. On account of the commission of the said offences, no harm was done to the business of the bank. The said offence under section 467, P.P.C. in respect of forgery of the cheques was, therefore, not an offence in connection with the business of the bank either.

12. For all the foregoing reasons, I am of the view that the offence under section 467, P.P.C. in regard to the forgery of said cheques in all the five cases did not fall within the ambit of an offence in respect I of a bank or in connection with the business of a bank and was, therefore, not a scheduled offence and as such was not triable by this Court.

13. The question of venue of trial of offence under section 471, P.P.C. in respect of use of said forged cheques in the bank as genuine cheques yet remains to, be seen. That point has been raised by the learned Special Prosecutor. On the facts of this case it appears to be true that in presenting the forged cheques as genuine, the accused can be said to have committed the offence under section 471, P.P.C. But the question is one of availability of evidence to enable the Court to frame a charge in that regard. No charge was framed by the Special Judge (Central) for the said offence on that count presumably because no evidence was available to enable him to do so. In any way assuming that evidence to that effect is available on record, even then in my opinion, the said offence was already not one in respect to bank inasmuch as the use of said forged the cheques as genuine did not effect the bank adversely either in its financial aspect or otherwise. The said cheques were signed by officers of the office of the Director Audit and Accounts Works, Lahore, and the bank was within its right in making payment thereon through the accounts maintained in the bank by the payees, named in the said cheques. The Audit and Accounts Public Works Department could not claim from the bank the sums paid by it to the drawees mentioned therein. The commission of said offence did not affect the business of the bank either. The payment made, was valid and, therefore, the image of the bank did not get smirched in the eyes of public so as to damage its reputation as an institution and result in reduction of its business. Therefore, the said offence under section 471, P.P.C. is neither an offence in respect of the bank nor an offence in connection with the business of the bank and is, therefore, not a scheduled offence as defined in section 2(d) of the Ordinance and is accordingly not triable by this Court.

14. I have considered the observation of learned Special Judge (Central) to the effect that commission of offence of forgery outside and inside the office of Director Audit and Accounts Works formed part of the same transactions committed in furtherance of the common object of drawing money from the bank. In my opinion, however, 'the fact that forgery outside the bank was in furtherance of the object of drawing money from the bank was not conclusive to show that the offences committed in this case are triable by this Court. The said circumstance only qualifies for a single trial for all the charges as laid down in section 236, Cr.P.C. or a joint trial of all the accused as laid down in clause (a) of section 239, Cr.P.C. but does not determine the question of venue of the trial of the accused charged with the said offences. This Court is a Special Court which cannot travel beyond the four corners of the statute which has created it. According to the said statute, this Court can try an accused person for scheduled offences only. Therefore, the crucial point in order to determine the jurisdictional question in issue in this case is whether the said offences are in respect of the bank or in connection with the business of the bank. It having been proved that the two offences under section 467 and 471, P.P.C., whether in relation to bills or in relation to the cheques committed in these cases were neither in respect of the bank nor in connection with the business of the bank, these were not scheduled offences as defined in section 2(d) of the Ordinance and were, therefore, not triable by this Court.

In view of the above, I direct that these five cases be returned to learned Special Judge (Central), Lahore for trial.

M. Y. H. Cases returned.

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