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Criminal Appeal No. 13-D of 1966, decided on 21^st November 1967.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 18th August 1965, in Criminal Appeal No. 421 of 1963).

, S. 23 Conviction under section-Special leave to appeal granted by Supreme Court to examine legality of, in light of evidence in case.

, S 23 Person permitted to acquire foreign exchange by sale in India of goods exported with condition that he should repatriate proceeds of sale within two months- Failure to repatriate proceeds within prescribed time on bare excuse that bills of entry had not been issued by Indian authorities, without approaching for assistance Pakistani Bank acting on his behalf- Conviction under S: 23, held, proper-Sentence of imprisonment reduced but amount of ,fine imposed enhanced.

Mahboobar Rahman Criminal Appeal No. 4 of 1964 held not applicable.

Ruhul Islam, Advocate Supreme Court instructed by M. R. Khan, Attorney for Appellant.

A. K. M. Nurul Islam, Advocate Supreme Court instructed by Abu Backkar, Senior Attorney for Respondents Nos, 1-2.

Date of hearing : 21st November 1967.

The respondent Abdus Sattar, a merchant of Khulna, was convicted at trial by a Special Judge of an offence punishable under section 23 of the Foreign Exchange Regulation Act, and sentenced to a term of imprisonment, and a fine of Rs. 5,006. Clear proof was led to show that under proper authorisation, he exported fresh fish and prawns to India of the value of Rs. 9,294-14-0 on three dates in May and June 1960, and failed to repatriate any part of the proceeds of the sale of these goods. A condition of the authorisation was that such proceeds should be repatriated within two months.

On appeal to the High Court, he was acquitted by a learned Single Judge on a basis of argument as follows:

(1) there is no evidence that the appellant received the actual proceeds of the export, or "the bills of entries through his bank

(2) there was "some suspicion" against him, since

(a) though he says he wrote letters to the buyer and to the Deputy High Commissioner for Pakistan in Calcutta, yet he produced no copies of these letters ; and

(b) there was nothing to show that he approached either ,the Habib Bank or the State Bank of Pakistan for assistance, but this was not sufficient basis for conviction on a Criminal charge.

(3) in an unreported judgment, the Supreme Court in the case of Mahboobara Rahman (Criminal Appeal No. 4 of 1960, had held that in the absence of evidence that, having received the proceeds of the export, the accused failed to repatriate them to Pakistan, the charge must fail.

Leave to appeal against the order of acquittal was given to the State Bank of Pakistan, to examine the legality of the order in the light of the evidence in the case. .

We have referred to the unreported judgment cited above, and do not find that it supports that the proposition which the learned Single Judge purported to draw from it. In that case hides to the value of about Rs. 25,000 had been exported to India, subject to an undertaking to deliver to the Habib Bank at Khulna the foreign exchange proceeds resulting from the export. Evidence was given by responsible officials of the Bank that arrangements had been made with the Bank for the realisation of the export proceeds. Bills in respect of the export were certified by the Bank to have been submitted for collection on specified dates, in India, but the proceeds had not been realised as the drawees could not pay. In the absence of any evidence to show that the exporter had intentionally caused any delay in the sale of the exported goods or in the realisation of the sale proceeds or that he had directly received the value of the bills in Calcutta," the evidence given by responsible Bank officials that the bill; had been returned unpaid, because the drawee had failed to, honour them was accepted as proving that "in fact there was no foreign change earning from the transaction."

The case is quite different here. In this case, letters of credit to cover the export had been opened with the Union Bank of India Ltd., at Calcutta by the Indian importer, under advice to the Habib Bank Khulna, which Bank was acting on the accused' s behalf. This was intimated to the accused by means of letters which offered the Bank's services for recovering monies due in the following terms :-

"We would gladly, at our option as customary, negotiate bills you may have occasion to draw upon this credit and would be pleased to extend to you our usual assistance and services, but this advice carries no undertaking on our part."

A witness Mr. Abdul Manzur, Banking Officer of the Habib Bank at Khulna, who proved the various forms issued in the accused' s favour authorising the export, also proved the fact that letters of credit sufficient to cover the export had been opened in Calcutta, and went on to say that the accused never approached the Bank for assistance in getting over the difficulty he alleged, viz, that no bills of entry had been issued by the Indian authorities. Had lie done so, the Habib Bank could have proceeded, with the sanction of the State Bank, Pakistan, to collect on the Letters of Credit, even without presenting the bills of entry. Out of goods to the value of Rs. 32,000 exported through the Bank by the accused, in the years 1959 and 1,960, had repatriated only, Rs. 10,500 through the Bank, This evidence gives the lie to the accused' s plea that without the Indian bills of entry, it was impossible to repatriate the proceeds. It should be pointed out that the offence alleged against the accused was that he having been permitted to acquire foreign exchange, by the sale in India of goods he was permitted to export, failed to comply with the condition, applicable to such permission, viz., that he did not repatriate the proceeds within the, prescribed period of two months. The opening of Letters of Credit by the purchaser in. India is a sufficient indication of readiness and willingness to pay for the imported goods, on the part of the purchaser. No part of the proceeds of the exports in 1960, valued at Rs. 12,294-14-0, was it seems repatriated, as shown by the figures, set out at the end of the preceding paragraph, for the export in 1959 was valued at Rs. 19,705-2-0, and the total amount repatriated in 1959 and 1960 was Rs. 10,500. The excuse that lack of the bills of entry prevented repatriation of the balance is palpably insufficient, as the evidence of M r. Abdul Manzur clearly proves. The Bank's services were always available for recovery of the amount involved, and it seems clear that the accused deliberately avoided asking for such assistance. Therefore his failure to comply with the condition to which his export permit was subject must be held to be deli berate, and he was clearly liable to conviction under section 23of the Act.

We accordingly allow this appeal by the State Bank of Pakistan, which was the prosecutor in the case, and setting aside the order of acquittal by the High Court, we restore the conviction recorded by the Special Judge. In view of the fact that more than seven years have elapsed since the default was made, we do not consider it necessary to restore the order for imprisonment, and accordingly alter the sentence to the period of imprisonment already undergone, and a fine of Rs. 10,000 (ten thousand rupees) or in default six months' simple imprisonment. .

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