2020 PLP 359 (CLD)

FAHIM AHMED SIDDIQUI, J.

Through the instant Criminal Miscellaneous Application, the applicant has challenged the impugned order dated 02.07.2018, passed by the learned 2nd Additional Sessions Judge, Badin, whereby the learned Judge in the capacity of Justice of Peace has dismissed the application under sections 22-A and 22-B, Cr.P.C. filed by the applicant for lodging FIR against the respondent No.4. It is the case of the applicants that they are a Micro Finance Institution duly licensed by State Bank of Pakistan, and in the said capacity they provide loan facility for the same purpose, they mortgage precious metals (gold and golden ornaments). In this regard they hired the services of respondent No.4, who is a Jeweler for checking and verifying the quality of precious metals (including gold and golden ornaments). In this respect they entered into an agreement dated 04.08.2015, with the respondent No.4, as Schroff. The contention of the learned counsel for the applicants is that a huge number of their clients have obtained loan facility on the collateral of golden ornaments which were checked by the respondent No.4, but later-on, the persons who obtained loan facility become defaulter and when the golden ornaments, deposited by them as collateral, checked by an independent expert, it was found that same are artificial. He further submits that the golden ornaments were checked by the respondent No.4 sealed by him and the same remained in sealed condition till they were checked by an independent expert; therefore, the respondent No.4 has acted criminally by declaring imitation jewelry as golden ornaments. He submits that the applicant is entitled for getting a criminal case registered against the respondent No.4 but learned Ex-Officio Justice of Peace has declined such application by holding that it is not a criminal liability and the dispute between the parties is of civil nature. Converses, learned counsel for the respondent No.4 opposes the instant application by submitting that the order of the learned Ex-Officio Justice of Peace is correct and proper. He submits that the parties are entered into an agreement and if there is any breach of agreement, then the proper course is available by filing a Suit for Damages etc. He further points out that the applicants is a Bank, as such, they cannot lodge FIR and only course is available to them is to file a private complaint before the Banking Court as per provision of Financial Institutions (Recovery of Finances) Ordinance, 2001. On the other hand, learned D.P.G submits that there will be no harm, if the police is directed to record the statement and act as per law. I have heard the arguments for the respective parties and have gone through the entire material available on record. The agreement between the applicants and respondent No.4 indicates that the services of respondent No.4 were hired by the applicants as schroff/jeweler to check and verify the golden ornaments which were required to be deposited with the applicants as collateral. It appears that the procedure provided for the same is that the customer approached to the respondent No.4, where he checked the ornaments and then sealed them in a bag which was handed over to the applicants in sealed condition at the time of obtaining financing facility. Nevertheless, the good number of their clients' ornaments were found fake and imitation. as such, the applicant sustained losses. It is worth noting that there is a provision in the agreement which indemnify the applicant in respect of damage caused by schroff/jeweler due to his negligence and mistake for which surely a civil proceeding may be initiated. However, in the instant case, a huge number of customers of applicant obtained financing facility on the basis of fake and imitation golden ornaments, which is certainly astonishing and not possible by a professional jeweler/schroff, without any criminal folly. So far as, the contention of filing the complaint before Banking Court is concerned, I am of the view that it is not possible for a Micro Finance Institution in view of subsection (2) of section 3 of Micro Finance Ordinance (LV of 2001), wherein it is stated that a Micro Finance Institution shall not be deem to be a Banking Company. In these circumstances, I am of the view that an FIR in respect of the offence mentioned in Financial Institutions (Recovery of Finances) Ordinance, 2001 can be lodged by Micro Finance Institution. Hence, the instant Criminal Miscellaneous Application is allowed and the SHO concerned is directed to record the statement of the applicant and if from the statement cognizable offence is made out then the same be incorporated in the prescribed book of section 154, Cr.P.C. With these observations, the instant Criminal Miscellaneous Application stands Allowed. SA/T-8/Sindh Application allowed.