Find a Lawyer

Criminal Appeal No.137 of 1986, decided on 19th April, 1987.

---S.12--Realization of sale proceeds--Accused failing to repatriate amount of export within time and deposited same in parts before and after extension of time allowed by State Bank--Non-compliance of provisions of Act--Effect--Circumstances explained and documents produced by accused and fact that he deposited all the amount not making contravention of provisions of S.12 of Act either deliberately or intentionally--Charge of offence, held, not brought home--Conviction and sentence set aside.

1973 S C M R 642; 1968 P Cr. L J 1053; P L D 1964 Dacca 20; 1968 P Cr: L J 830 and 1980 P Cr. L J 1111 ref.

This appeal is directed against the judgment, dated 31-5-1986 of IIIrd Additional Sessions Judge Karachi (South) whereby he convicted the appellant under section 12 of Foreign Exchange Regulation Act, 1947 and sentenced him till rising of the Court and to pay fine of Rs.5,000/- in default to suffer simple imprisonment for three months. Being aggrieved he has filed this appeal.

Briefly the case of the prosecution is that the appellant is a proprietor of M/s. Pak General Impex Limited. He exported Onyx Marble to New York worth U.S. 5750. He had to realise the sale proceeds within a period. of four months from the date of shipment but he failed to pay the full amount, therefore a show-cause notice was issued to the firm as the appellant failed to repatriate the sale proceeds. One Muhammad Sharif, P. Director of State Bank of Pakistan lodged report on 16-12-1979 under section 12 read with section 23 of F.E.R. Act, 1947. After usual investigation the appellant was sent up and convicted as stated above.

Charge under section 12 was framed against the appellant to which he pleaded not guilty and stated that he will furnish documentary evidence.

Prosecution in support of its case examined complainant Muhammad Sharif as Ex. 3 who produced his complaint as Ex. 4, Show-Cause Notice as Ex. 5, reply as Ex. 6 and other documents, P.W. 2 Siddiq Ganchi, Officer in United Bank Ltd., Karachi as Ex. 26 who produced the letter, dated 18-12-79 as Ex. 27, the Bill of Exchange as Ex. 28 and covering letter as Ex. 29 and P.W. 3 Abdul Shakoor as Ex. 30 who produced F.I.R. as Ex. 31.

I have heard Syed Wasiuddin on the last date of hearing and also his counsel Mr. Diwan Bashir Ahmed. The factual position in the present case has not been denied but it is contended that due to the circumstances beyond the control of the appellant he could not repatriate the amount in time and also State Bank by an order, dated 27-2-80 granted an extension and prior to that he repatriated Rs.35,000/- on 12-4-78 in advance and Rs.10,000/- were repatriated on 10-2-80 but he could not bring Rs.11,500/- and finally this amount was also paid on 2-2-83.

It is argued that there was no mala fide on the part of the appellant and reliance was placed on the cases reported in 1973 SCMft 642, 1968 p Cr. L J 1053, P L D 1964 Dacca 20, 1968 P Cr. L J 830 and 1980 P Cr. L J 1111. Mr. Jalaluddin Baloch appearing for the State supported the conviction.

The appellant was also issued notices as to why the sentence should not be enhanced. Mr. Diwan Bashir Ahmed argued that in view of the circumstances of the case appellant is entitled to acquittal, as such the enhancement of sentence may not be considered.

It is an admitted position that the appellant was supposed to repatriate the entire amount within four months from the date of export - i.e. till 12-10-77 but instead on 12-2-78 he repatriated Rs.35,000/-, on 10-2-80 Rs.10,000/- and the balance on 2-2-1983.

After the registration of case by letter 27-2-80 Ex. 20 the State Bank advised the appellant to repatriate the balance of Rs.12,500/ but not later than 29-2-1980. In the same letter the appellant was informed that his request for adjustment of advance remittance of Rs.35,000/- against the captioned bill is under the consideration of the. Control. This concession was allowed to the appellant after the registration of the case. He repatriated the amount by 29-2-80, he could not have been challaned. At the time of this letter the case was under investigation and the appellant could not be challaned by the police.

The trial Court in the judgment observed that the act of the appellant was mala fide, hence he was liable to convicted. In all the reported cases sale proceeds was not repatriated in time but the conduct of the defaulter was not considered to a mala fide. The State Bank after filing the case has also considered the request of the appellant and allowed the extension of time till 29-2-1980 but he could not repatriate the same within that period and finally paid the same on 2-2-1983. No doubt there is a default and non-compliance of the provision but in the circumstances explained by the appellant and documents produced by him and also in view of his conduct by depositing the entire amount, I am of the view that the act of appellant would not amount to deliberate and intentional contravention of the provisions of section 12 of the said Act. I, therefore, hold that the charge of the offence has not been brought home.

Consequently the appeal is allowed. The convictions recorded by the Tribunal are set aside. Fine, if paid by the appellant, shall be refunded to him. Notice for enhancement of sentence is vacated.

M.H.Y./W-7/K Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.