SHAKIL AHMED ABBASI, CHAIRMAN.---By this order I will dispose the aforesaid application which is filed by the Defense Counsel Mr. Mohsin Abbasi Advocate on behalf of the accused. The substance and crux of the said application is based on the following background: Summary of the Complaint:---The circumstances giving rise to this application are that a complainant namely Mehtab Gul of M/s. Nish Techi (hereinafter refer as Foreign Buyer) propel his complaint on 31st October. 2013, in form of an E-mail to the Consulate General of The Islamic Republic of Pakistan at Hong Kong against M/s. Apex A Commodities Karachi (hereinafter accused firm) pertaining to the delivery of the agreed consignment of I Phones 5S, which was never shipped to the foreign buyer, accordingly inflicting a jolt of loss to him US$ 13,650/- (Thirteen Thousand Six Hundred and Fifty US Dollars Only).
Consequently on 11th November, 2013, the complaint of the foreign buyer via Mr. Ali Awan, Trade Development Officer, Consulate General of Pakistan, Hong Kong was frontward to Mr. Khurram Ikram, Assistant Director (Trade Dispute), T.D.A.P., Karachi who in continuation of the foreign buyer's complaint via Trade Development Officer, Consulate General of Pakistan, Hong Kong issued a Show Cause Notice dated 03rd December, 2013 to M/s. Apex Commodities. Karachi: which was not replied by the accused firm. As a result the complaint of violation under section 05 of The Imports and Exports (Control) Act, 1950 read with section 4(a) of The Export (Quality Control) Order, 1973 B against the accused firm was filed before this Court.
Contention of Defense Counsel on behalf of Accused Firm (M/s. Apex Commodities):--The strife of the defense counsel based on the following grounds.-
1. That the complainant M/s. Nish Techi is not the foreign buyer but it is a financer of his customer namely M/s. Creative Tek. M/s. Creative Tek has not filed any complaint of whatsoever nature neither to Trade Development Officer at Hong Kong nor to Trade Development Authority of Pakistan at Karachi.
2. That the actual facts could be spelled out from the documents where were filed by the complainant (TDAP) viz. a) Copy of the Complaint/Email of Mehtab Gul (Nish Techi). b) Copy of Invoice No. AC-5973 dated 25th October, 2013.
3. That after going through the documents, facts clearly revealed that there are three different parties mentioned in the document namely viz.
(i) Nish Techi: The complainant and who as per his complaint dated 31st October, 2013, stated that "Invoice was made on my customer name and payment was done by us on behalf of customer."
Hence the status of M/s. Nish Techi is that of Payer or Financer.
(ii) Creative Tek: The customer of Nish Techi on whose behalf Nish Techi made the payment and on whose name the invoice was made. Therefore the status of M/s. Creative Tek is that of actual Foreign Buyer.
(iii) Apex Commodities: The supplier of the goods who issued the invoice number AC-5793 dated 25th October, 2013,. in the name of M/s. Creative Tek. The status of M/s. Apex Commodities is the Seller of Goods.
That M/s. Nish Techi is not a foreign buyer as same is clearly mentioned in the Complaint send by Mehtab Gul of the firm in question to the Consulate General of Pakistan, at Hong Kong.
5. That the invoice No.5793 dated 25th October, 2013 of M/s. Apex Commodities (accused firm) apparently reveal the name of M/s. Creative Tek and not the name M/s. Nish Techi.
6. That the TDAP erroneously implicated M/s. Nish Techi as a foreign buyer, whereas it is a finances which provides finance to their clients.
7. That under no law the finance of a foreign buyer can be declared or deemed to be a foreign buyer in any manner whatsoever.
8. That the Trade Dispute Directorate of TDAP is assigned to resolve disputes between exporter and importer. Thus TDAP has no legal authority to file complaint on behalf of financer of foreign buyer against the accused.
9. That the letter of Mr. Ali Awan, Trade Dispute Officer, at Hong Kong did not reflects any complaint of trade malpractice or any indulging of unfair trade exercise, but it based on disbursing of payment on behalf of someone which is a type of financial advance and such is recoverable only from a person to whom such loan was issued or on whose behalf the payment was made.
10. That even section 3 of The Imports and Exports (Control) Act, 1950 is not applicable on person/company who acts as financer and makes payment on behalf of the Exporter or Importer.
Therefore the Special Court (Commercial) is not a forum for filing complaints for recovery of loan and advances.
11. That, the actual foreign buyer M/s. Creative Tek has not made any complaint to Trade Development Officer at Hong Kong nor had made any complaint to TDAP at Karachi regarding accused firm for cheating the foreign buyer or indulging in unfair trade practice, thus section 4(a) of Exports (Quality Control) Order, 1973, and section 5 of Imports and Exports (Control) Act, 1950, is not applicable against accused firm.
12. That in absence of any complaint by M/s. Creative Tek (The actual foreign buyer) neither Trade Development Officer of Consulate General of Pakistan at Hong Kong nor Trade Development Authority of Pakistan at Karachi has any authority to file complaint against accused firm.
13. That the complaint is based on misconception of facts and misapplication of law therefore complainant has no cause of action and no locus standi to file the complaint against the accused firm; hence liable to be dismissed.
14. That, in this instant case M/s. Nish Techi being the financer of the foreign buyer (M/s. Creative Tek) should contact the latter one for his refund of money. The complaint of Mehtab Gul is illegal, unwarranted and unlawful and cannot be entertained.
15. That, it is the well settled principle of Jaw that Court must put an end to the litigation at the very initial stage when on account of some legal impediments, full-fledged trial will be futile exercise (2017 YLR 434, 2014 SCM R 513).
Contention of Prosecution on behalf of Complainant (TDAP) along with its Rebuttal:---The strife of the Prosecution on behalf of state (TDAP) is based on the following grounds simultaneously counter by the Defense Counsel: S# CONTENTION OF PROSECUTION SIDE REBUTTAL FROM DEFENCE SIDE 01The Complainant namely Trade Development Authority of Pakistan has filed this complaint under section 5 of Imports and Exports (Control) Act, 1950 as the accused committed offence under - section 5 of Imports and Exports (Control) Act. 1950 as the accused committed offence under section 4 of Exports (Quality Control)
Order, 1973 which reproduced as-
4. Prohibition of Trade malpractices:- No person engaged in export trade shall will fully,
(a) fail to fulfill export orders or to supply goods within the agreed period.Point No.1 is not denied to the extent that T.D.A.P. has filed complaint against the accused under section 5 of Imports and Exports (Control) Act.
1950, but it is Strictly Denied that the accused committed any offence under section 4(a) of Exports (Quality Control) Order, 1973.
02That a trade complaint was forwarded by Mr. Ali Awan.
Trade Development Officer. Consulate General of Pakistan, Hong Kong vide his letter No.TDO/HK/COM P13 dated 11TH November 2013. The complainant namely M/s. Nish Tech. Hong Kong has mentioned in his complaint the he has made payment to purchase of I phones 5S to M/s. Apex Commodities. Karachi. The payment was made to accused through Bank but the accused has not shipped the goods. The accused had taken the plea that the amount has been sent back and the same is not credited in his account. This is the gist of the complaint.Point No. 2 is denied as no trade complaint was forwarded by Trade Development Officer (TDO).
Consulate General of Pakistan, Hong Kong.
However, a complaint of M/s. Nish Techi for payment refund was forwarded by TDO. Consulate General of Pakistan. Hong Kong by his letter No. TDO/HK/COMP 13 dated 11th November, 2013.
The complainant Nish Techi who was falsely declared foreign buyer by TDAP has mentioned in his complaint that he has made payment to the accused on behalf of foreign buyer M/s. Creative Tek. Hong Kong whose name invoice was made.
M/s. Nishtechi has asked for assistance and intervention so that he receives back the payment from accused that was made on behalf of foreign buyer M/s. Creative Tek.
03The accused filed application dated 27th January, 2016 under section 265-K, Cr.P.C. and taken the ground that the Imports and Exports (Control) Act, 1950 is not applicable in this case.Point No. 3 is not dented. The accused filed application under section 265-K. Cr.P.C. on the ground that the accused is not an exporter and therefore there is no probability that accused be convicted of an offence under section 5 of Imports and Exports (Control) Act, 1950, wherein acquittal was sought.
04This Honorable Court gave patient hearing to the accused and after hearing, dismissed the application by order dated 12th Jan. 2017Point No. 4 is not denied.
05That accused again filed this application under section 5-B of Imports and Exports (Control) ACE, 1950 on the same ground by twisting said plea in a different manner that M/s. Nish Tech is not the foreign buyer but financer.Point No.5 is strictly denied as the accused filed this application on following grounds:
(a) That the TDAP in their complaint has wrongly declared M/s. Nish Techi as foreign buyer whereas he is the finance of foreign buyer who has made payment on behalf of foreign buyer M/s. Creative Tek whose name invoice was made.
(b) There is no complaint of foreign buyer M/s. Creative Tek against the accused and in absence of complaint of foreign buyer the Commercial Court cannot proceed with the case filed by TDAP.
Thus the question of twisting the facts dots not arise, as this application is filed on fresh grounds and there is no resemblance of grounds mentioned in previous application filed under section 265-K, Cr.P.C.
06This is a Criminal case in which any person can inform to the state in respect of the offence. The state is the complainant in this case. The plea is not maintainable under the criminal law. Moreover the application is wrongly filed in section 5-B of the Imports and Exports (Control) Act, 1950. The law is very clear on this point that the authorized officer of the Export Promotion Burcau/TDAP can file the complaint under section 5B(2)(a) of Imports and Exports (Control) Act, 1950.
The Imports and Exports (Control) Act, 1950 is the substantial law and is not the procedural law. Therefore the application under section 5-B of Imports and Exports (Control Act, 1950 is not maintainable.Point No. 6 is strictly denied as the complaint was filed by TDAP under section 5 of The Imports and Exports (Control) Act, 1950 which is a special law, therefore the provision of the law will prevail over any other law. However, there the special law is silent in any point the general law may it be Civil or Criminal will be applicable. As per Imports and Exports (Control) Act. 1950. the Commercial Court can only take cognizance of an offence on complaint of foreign buyer and not on the complaint of any person.
Counsel heard at length. After carefully going through the record/evidence and the arguments of the parties it is held that the complainant TDAP has failed to make out this case on facts and grounds and beyond reasonable doubts. Even otherwise on legal plain its case fails as the importer/original buyer viz M/s. Creative Tek has not lodged the instant complaint but by his agent M/s. Nish Techi with whom the exporter/accused has no privity of contract. On the settled principal of law being that a Criminal Complaint/ FIR cannot be ledged by an attorney of complainant, but should be filed by the complainant himself. On this analogy the instant complaint lodged by a totally different person viz by his agent is held to be illegal. Hence not sustainable in the eye of law/Criminal Jurisprudence.
Resultantly, the instant application under section 5-B of IMPORTS AND EXPORTS (CONTROL) ACT, 1950 filed by the exporter/accused firm stands allowed. Accordingly the instant complaint filed by the TDAP stands dismissed. The accused is on bail, his bail bonds are cancelled and surety is discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.