ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Revision Application No.S-230 of 2017
(Muhammad Sadiq v. Dileep Kumar Chawla and others)
Date of hearing: 26.11.2018
Date of Decision: 26.11.2018
Applicant: Muhammad Sadiq through Mr. Abdul Hafeez Memon, Advocate.
Respondent No.1to3: Through Mr. Shahid Ahmed Shaikh, Deputy Prosecutor General Sindh.
Respondent No.4to7: Through Mr. Dhani Bux Otho, Advocate.
O R D E R
Fahim Ahmed Siddiqui,J-. By filing the instant criminal revision, the applicant has assailed the order dated 24.11.2017 passed by learned Special Judge, Anti-Corruption (Provincial), Hyderabad in Private Complaint No. 80/2017 (Re-Muhammad Saidq v/s Dileep Kumar Chawla & others), whereby the said complaint filed by the applicant was dismissed.
2. The contextual scenario of the case is that the applicant has filed a private complaint before the learned Special Judge, Anti-Corruption (Provincial), Hyderabad being President of Okhai Memon Anjuman, Matli. It is claimed that the said Anjuman is a registered body duly registered in the year 1968. The said body has purchased an immovable property bearing Survey No. 490, 491 & 492 situated in Ward-B. The said property was allegedly sold out in the year 2004 and purchased a plot bearing City Survey No. 858, measuring 3800 square feet, situated in Ward-B, near Chandni Chowk, Matli through registered sale deed. Subsequently, the Anjuman has constructed a Community Centre and a Marriage Hall on the said plot in the year 2004/2005. It is also claimed that since its purchase and construction, the said property is in use and occupation of Okhai Memon Anjuman, Matli and employed respondent/accused No. 7 as Manager over the Community Centre and the Marriage Hall. Allegedly, respondent No. 7 during his tenure in office misappropriated an amount of Rs. 19,00,000/-, as such, his services were terminated. It is also alleged that respondent No. 7 due to such termination has annoyed and started creating hindrances and inclusion with respondents/accused No. 1 to 6 prepared a bogus and fraudulent power of attorney in respect of the said property of Okhai Memon Anjuman, Matli. In the said power of attorney, respondents/accused No. 4 to 6 posed themselves to be the office bearer of Okhai Memon Anjuman, Karachi in which they have shown Okhai Memon Anjuman, Matli as their Branch. Allegedly, Okhai Memon Anjuman, Karachi is a defunct organisation, since 1956, as reported by the Provincial Assistant Registrar, Joint Stock Companies, Karachi and reportedly the respondents No. 4 to 6 are not the office bearers of the defunct Okhai Memon Anjuman, Karachi.
3. According to the applicant, due to such illegal act of preparing and producing the alleged illegal power of attorney regarding the property of Okhai Memon Anjuman, Matli, the respondents have committed offence of cheating, fraud, forgery, impersonation, misappropriation, etc., as such, a complaint was filed before the lower forum, which was dismissed.
4. In support of the instant criminal revision application, the learned counsel for the applicant has argued at length. Briefly his arguments are that the applicant has filed the complaint in the capacity of President of Okhai Memon Anjuman, Matli, which was wrongly dismissed by the trial Court. The applicant is elected President and his appointment as President is confirmed by the concerned authority. The respondent No. 4 to 6 posed themselves as the President, General Secretary and Joint Secretary of Okhai Memon Anjuman, Karachi, which is a separate body having no concern with the applicant's association. They prepared the bogus power of attorney in favour of respondent No. 7 with an intention to transfer the property of Okhai Memon Anjuman, Matli, as such, they have committed offence of cheating, forgery and corruption. The learned trial Court did not consider that the association, which is represented by the respondents is a defunct association, as such, they are responsible for the offence of cheating and misrepresentation. The observation of the learned trial Court is improper and incorrect that the complainant should first seek the declaration in respect of the property of his association. He relies upon 2014 P.Cr.L.J 684 & 2012 P.Cr.L.J 220.
5. The learned counsel for the respondents also addressed the Court at length. The gist of his arguments is that the civil litigation is pending and the applicant has filed a Civil Suit No. 152/2016, which is sufficient to establish that no ground for filing a complaint is in existence. It is a factual position that not only the association of respondents but also the association of the applicant was dormant and the Association of the respondents i.e. Okhai Memon Anjuman, Karachi is now restored from status of dormant. The Okhai Memon Anjuman, Karachi is an old body and the main association of Okhai Memon Community while Okhai Memon Anjuman, Matli is a chapter and branch of the main association. The property in question is acquired, built and operated by the resources of Okhai Memon Anjuman, Karachi, which is a well-known organisation of Karachi and doing so many welfare services since long. He relies upon SBLR 2007 Sindh 497 & PLD 2004 Supreme Court 364.
6. The learned DPG supports the impugned judgment and submits that the applicant himself has filed suit, which is sufficient to indicate that there are still clouds over their status and until and unless they are unable to clarify their position, it cannot be said that the applicant has a locus standi to file a complaint.
7. I have heard the arguments advanced and have gone through the relevant record. From the contents of private complaint filed by the applicant and from the impugned order it is revealed that the trial Court has sought an enquiry regarding the complaint of the applicant. It appears from the enquiry report that there is a registered power of attorney and as long as a registered document is in field, the sanctity is attached to it. The enquiry report further reveals that the Okhai Memon Anjuman, Karachi is a dormant body and the Enquiry Officer further alleged that the bylaws of Okhai Memon Anjuman, Karachi are bogus. In my humble view, the Enquiry Officer erred in declaring any document of a dormant status of an association as bogus because a dormant body can be restored again at any moment. It is a factual position that Okhai Memon Anjuman, Karachi is an organisation busy in several social welfare activities in Karachi and even a dormant body remained in existence unless its registration is cancelled. Dormant status of a body is due to non-submissions of annual report of the body to the Registrar Joint Stock Companies and as soon as the requirements are fulfilled, the status of the body will be restored.
8. It is also worth noting that it transpires from the record that the association of the applicant has filed a FC Suit No. 152/2017 (Re: Okhani Memon Anjuman, Matli v/s Okhai Memon Anjuman, Karachi) before the learned Senior Civil Judge, Badin wherein they have sought declaration of the ownership of plot in question i.e. City Survey No. 858, measuring 3800 square feet, situated in Ward-B, near Chandni Chowk, Matli as well as they also sought inter alia other relief including cancellation of the alleged power of attorney. It is also revealed from the record that the plaint of the said was rejected by the trial Court and the applicant's body has filed an appeal against the said order which is still pending adjudication. In the existing position of affairs, it can be said that the status of the Okhani Memon Anjuman, Matli is still under clouds at least in respect of their claim of ownership regarding the plot in question for which the alleged power of attorney was executed. In these circumstances, a criminal action by the applicant against the respondents is nothing but the misuse of the process of law, as such, the private complaint filed by the applicant was rightly dismissed by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad through the impugned order, which does not require any interference by this Court.
9. The above are the reasons for dismissal of the instant criminal revision application through my short order dated 26.11.2018.
JUDGE
*Abdullah Channa/PS*
Hyderabad.
Dated 07.12.2018