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Criminal Appeals Nos. 429, 430 and 431 of 1960, decided on 30th August 1962.
Delay in repatriation not intentional‑Offence under S. 23 held, not committed in circumstances.
A. W. Chowdhury for Abdus Sobhan for Appellant.
Serajul Huq for the State.
Ruhul Islam for the State Bank of Pakistan.
These three appeals have been heard together as the appellant is the same person in these three cases. Appeals Nos. 429, 420 and 431 of 1960 are against the orders of convictions and sentences under section 23 of the Foreign Exchange Regulation Act (Act VII of 1947) passed in Foreign Exchange Regulation Cases Nos. 6, 7 and 13 of 1958 respectively, by Mr. M. H. Ali, Sessions Judge and ex‑officio Tribunal; Foreign Exchange Regulation, Sylhet. In Case No. 6 of 1958, the accused M. A. Jabbar Chowdhury was sentenced to rigorous imprisonment for one month and to pay a fine of Rs. 9,199 in default to rigorous imprisonment for four months more. In Case No. 7 of 1958 the accused was sentenced to rigorous imprisonment for one month and to pay a fine of Rs. 14,736 in default to rigorous imprisonment for four months more. In Case No. 13 of 1958, the accused was sentenced to rigorous imprisonment for one month and to pay a fine of Rs. 20,205 in default to rigorous imprisonment for four months more.
2. In Case No. 6 of 1958 the facts are briefly as follows: Accused M. A. Jabbar Chowdhury & Co., of Zakiganj Bazar, Police‑Station Zakiganj in the district of Sylhet exported dry fish to India through Land Customs Station, Sheola on 19‑12‑56, 19‑12‑56 and 26‑12‑56 under I. R. P. 4 Forms Nos. A029661, A029664 and A050141 worth Rs. 6,107, Rs. 1,126 and Rs. 1,966 respectively on the export Applications Nos. 729, 730 and 757 dated 19‑12‑56, 19‑12‑56 and 26‑12‑56 respectively. He made the declara tion in the I. R. P. 4 forms that he would repatriate the export proceeds through his authorised dealer, namely, Habib Bank Ltd., Sylhet branch, within two months from the dates of export. But the accused did not repatriate the sale proceeds in complicity with the foreign buyer within the period men tioned. Notice issued to him under section 23(3) of the Act. In Case No. 7 of 1958 prosecution case is that the accused export ed dry fish to India worth Rs. 5,784 Rs. 3,965 and Rs. 4,987 on 26‑12‑56, 5‑1‑57 and 29‑1‑57 under 1. R. P.‑4 Forms Nos. A050103, A050142 and A050178 respectively through Land Customs Sta tion, Sheola. Although the accused declared that he would repatriate the export proceeds within two months from the dates of export through his authorised dealer Habib Bank Ltd., Sylhet branch, the sale proceeds were not repatriated within the due period in complicity with the foreign buyer. In Case No. 13 of 1958 the complaint is that the accused exported dry fish to India worth Rs. 4770, Rs. 2,445 and Rs. 5990 under I.R.P.‑4 Forms A050114, A050126 and A050126 on 1‑1‑57, 5‑1‑57 and 19‑1‑57 respectively with the declaration in the I. R. P.‑4 forms that the accused would repatriate the export proceeds within two months from the dates of export through his authorised dealer Habib Bank Ltd., Sylhet branch. But the accused did not repatriate the export proceeds within the stipulated period of two months in complicity with the foreign buyer.
3. The common defence in all the three cases was that the accused was not in collusion or in complicity with the foreign buyers and that there was never any mala fide on his part for not repatriating the export proceeds within the due period.
4. P. W. 1 Mr. Moinuddin Ahmed Khan, Deputy Assistant Controller, Foreign Exchange Department, State Bank, Dacca. P. W. 2 Md. Sirajuddin Chowdhury, a clerk, Habib Bank Ltd., Sylhet, P. W. 3 Mr. Golam Rabman, Deputy Superintendent, Central Excise and Land Customs and P. W. 4 S. A. Qayum, clerk of S.A. Chowdhury, Clearing Agents, Sheola are the witnesses exa mined on the side of the prosecution in each of the three cases. It has been proved by them that accused exported dry fish of the value of Rs. 9,199, Rs. 14,736 and Rs. 13,205 to India and that he did not repatriate the export proceeds within the due period. These facts are also not challenged by the learned Advocate for the appellant.
5. Mr. A. W. Chowdhury, the learned Advocate for the appellant, has contended that non‑repatriation of the export proceeds within the due period was not intentional and mala fide, and consequently there was no offence under section 23 of the Act and that as such the convictions are not maintainable.
6. Mr. Ruhul Islam, the learned Advocate on behalf of the State Bank of Pakistan, represented that as the export proceeds have since been repatriated during the pendency of the appeal and as the fact of repatriation has been com municated to the appellant by a letter from the State Bank of Pakistan, he has been instructed not to oppose the appeal.
7. Mr. Serajul Huq appeared on behalf of the State and opposed the appeals. Mr. Huq has contended in reply that mere contravention of the provisions of the Foreign Exchange Regulation Act irrespective of the question of intention constitutes an offence under section 23 of the Act. It has been further contended that as the export proceeds were not
repatriated within the periods mentioned in the I. R. P.‑4 forms of the different cases, the conviction under section 23 of the Act cannot be set aside although the sentence may be reduced in view of the fact that the sale proceeds have since been repatriated during the pendency of the appeals.
8. The three cases were filed on 24th of December 1958. Before the institution of the cases, the accused submitted the explanations which have been marked as Exhs. 3, 9 and 9 in Cases Nos. 6, 7 and 13 respectively. Each of the explanations runs as follows:‑
"The 27th August 1958,
Registered
The Assistant Controller,
State Bank of Pakistan,
Exchange Control Deptt., Dacca.
Sub:‑Realisation of Export proceeds.
Ref.‑Your No. EC. DA. ENF.
760/11‑58/3871‑73,
dated 13‑8‑58.
Sir,
In response to your letters under reference, I have the honour to state that the business of Indian Importer has been badly affected due to the sudden change of Import policy cancelling O. G. L. by the Government of India. My Importer in India sold out huge quantity of imported goods to his customers on credit and at present they are finding immense difficulty in collecting their dues from their customers for their incapability to supply any more quantity of dry fish to the customers and as such my Indian Importers unavoidably faced financial difficulty. I am all along pressing them hard to get themselves ready for repatriation of export bills covering the I. R.P's cited in your letter and they however assured me to do so within a short time.
It may be stated here that due to the failure of my Indian Importer in depositing the sale proceeds in time the collecting bank in India sent back the export bills to me through my bankers in Pakistan M/s. Habib Bank Ltd., Sylhet and I am in need of your kind permission for re‑submitting those exported bills to M/s. Habib Bank Ltd., Sylhet for the purpose of realisation of the sale proceeds in question.
I, therefore, pray that your honour would be gracious enough to grant me 6 (six) months time to realise the sales proceeds against the I. R. P's cited in your letters and also issue necessary orders directing M/s. Habib Bank Ltd., Sylhet branch to accept re‑submission of aforesaid export bills and to send them to the collecting bank in India for realisation. And for which act of your kindness I shall ever pray.
Yours faithfully,
for Chowdhury & Co.
(Sd.) Illegible.
Proprietor
28‑8‑58".
9. P.W. 1 Mr. Maniruddin Ahmad Khan admitted that the accused applied to the Bank more than once for extension of time to enable him to repatriate the export proceeds.
10. The letter from the Habib Bank Ltd., which has been marked as Exh. B in each of the cases shows that the accused exported dry fish of the value of Rs. 1,20,093 during the years 1956‑57 and that out of this amount Rs. 82,953 have been repatriated.
11. In an affidavit filed on behalf of the appellant on the 22nd of February 1956, it has been stated that the sum of Rs. 37,140 as the total sale proceeds of the exported dry fish relating to the three cases have been repatriated. This affidavit has not been opposed.
12. The facts that the accused repeatedly attempted for time to repatriate the sale proceeds though at a late stage Indicate that the accused had no intention of non‑repatriation of and that the delay which has taken place in repatriation of the sale proceeds is not deliberate. These facts also show that the accused was not in complicity with the foreign buyer and that there was no ma la fide on his part for delay In repatriation of the sale proceeds.
13. Subsection (2) of section 12 of the Foreign Exchange Regulation Act is as follows:‑
"Where any export of goods has been made to which a notification under subsection (1) applies, no person entitled to sell, or procure the sale of the said goods shall, except with the permission of the State Bank, do or refrain from doing any act with intent to secure that‑
(a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or
(b) payment for the goods s made otherwise than In the prescribed manner or does not represent the full amount pay able by the foreign buyer in respect of the goods subject to such deductions, if any, as may be allowed by the State Bank, or is delayed to such extent as aforesaid
Provided that no proceedings in respect of any contravention of this subsection shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner."
14. The above subsection indicates that delay in repatria tion would be an offence under section 23 of the Act provided it is intentional. In the facts of the present case the delay in repatriation has not been intentional. So, there has not been any offence under section 23 of the Act in the circumstances of the present case.
15. The learned Advocate on behalf of the State has referred to in the case of Kalipada Saha and another v. The State (P L D 1959 Dacca 723) in support of his contention that the offence is complete when repatriation is not made within two months from the date of export. In that case the following observation was made:
"His guilt is complete when repatriation of the money was not made within two months from the date of export."
But the facts of that case are distinguishable. It was found in that case that the three I. R. P.‑4 forms used by the accused were not genuine and were forged and as such the accused knew that on those forged forms repatriation was not possible. But in the present case the I. R. P.‑4 forms are genuine and repatriation has been actually made although at the appellate stage.
16. The convictions of the accused under section 23 of the Foreign Exchange Regulation Act cannot be sustained. The result is that the appeal case, allowed, the orders of convictions and sentences passed by the learned Sessions Judge and ex‑officio Special Tribunal Foreign Exchange Regulation, Sylhet in the three cases, namely, Foreign Exchange Cases Nos. 6, 7 and 13 of 1958 are set aside. The accused is acquitted of the charge under section 23 of the Foreign Exchange Regula tion Act made in each of the cases. The appellant is discharged from the bail bonds. Fines, if realised, are to be refunded to the appellant.
S. B./K. B. A.
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