1992 PLP 720 (MLD)

The accused stands charged under section 43‑A read with section 83(1‑C) of the Banking Companies Ordinance, 1962 for contravention of the. said provisions of the Ordinance. 2, Briefly stated, the facts of the case alleged against the accused are, that, the accused is carrying on business as a single proprietor ship concern in the name of Aamer Autos having its office at Court Road, near Ahle Hadis Masjid, Karachi. It has been alleged that the accused was transacting business of banking in contravention of the Banking Companies Ordinance, 1962, as he had published an advertisement in the newspaper "Jung" dated 15‑11‑1987. Consequently, a notice dated 25‑6‑1988 (Exh.B), signed by the Senior Deputy Director, State Bank of Pakistan was sent to the accused asking him to furnish information to the said Bank in this regard as envisaged by section 43‑A of the said Ordinance and also to allow authorised representative of the Bank to inspect the record of the accused's firm. This notice was received by the Sales Manager of the accused's firm on 26‑6‑1988. However, the accused failed to produce the relevant record but instead sent reply (Exh.D) dated 28‑6‑1988. Thereafter, an officer of the State Bank of Pakistan, visited the business premises of the accused and asked him to allow inspection of record but the accused refused to do the same. Consequently, another directive (Exh.C) was sent to the accused which was served on the Sales Manager of the accused's firm, but once again the accused only addressed a letter to the Bank dated 11‑7‑198$ alongwith a bank statement pertaining to the period from January, 1989 to the 30th June, 1988 (Exh.E). Thereafter, another directive was published in newspaper "Morning News" dated 27‑10‑1988 in this regard, but, the accused still failed to produce the required record before the Bank. Consequently, a complaint under section 94 of the Banking Companies Ordinance ‑‑as filed against the accused.

3. The accused in his statement recorded under section 342, Cr.P.C. although has admitted that he was doing business in the name of "Aamer Autos" as its sole proprietor, but has denied that he was doing any banking business as alleged by the prosecution. Although the statement appearing in the newspaper "Jung" dated 15‑11‑1987 was not completely disowned by the accused but, according to him, he only wanted a partner for his business. According to the accused, he was not maintaining any account books and, therefore, he could not produce the same before the State Bank of Pakistan. The accused also denied that any officer of the State Bank had visited his office in his presence or that he failed to furnish any information required by them.

4. The prosecution in support of their case have examined P.W. S.M. Khursheed A. Majeed, Deputy Director, Banking Inspection Department, State Bank of Pakistan, and P.W. Muhammad Rafique. However, from their evidence, no case against the accused has been made out to sustain the charge. First of all, according to section 43‑A of the Banking Companies Ordinance, if it appears to the State Bank of Pakistan that a company or any person is transacting in any manner or form, the business of banking in contravention of the provisions of the Banking Companies Ordinance, it can require information by virtue of the powers vesting ire it under section 43 .A of the said Ordinance. The advertisement which appeared in the newspaper "Jang" dated 15‑11‑1987 (Exh.3) shows that the accused had only invited investment for partnership. Section 5‑B of the said Ordinance defines "banking", and according to the said definition, banking means the accepting, for purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise:' Since the accused by the said advertisement had only invited partners for investment, nothing can be spelt out therefrom to prima facie suggest that the accused was doing any business of banking. Furthermore, not a single witness has been produced in support of the prosecution case to indicate that he had invested money or deposited the same with the accused in pursuance of the said advertisement or that the said accused was doing any business of banking. Furthermore, the letters, dated 28‑6‑1988 and 11‑7‑1988 (Exhs. D & E) show that the accused did furnish the information which he had in his possession to Mian Abdul Qadir, Senior Deputy Director. State Bank of Pakistan. It further shows that the accused had also sent a copy of his bank statement to Mian Abdul Qadir. However, according to the prosecution, the accused had failed to produce his books of account to P.W. Muhammad Rafique when he visited the office premises of the accused. Reference may be made in this regard to the deposition of P.W. S.M. Khurshid. This is further confirmed by the deposition of P.W. Muhammad Rafique according to whom, when he had gone to the, accused three times after service of the different directives issued by the State Bank upon the accused, no record was shown to him. It is pertinent to point out that according to the statement given by the accused under section 342, Cr.P.C. the accused was not present in his office when the said officer had visited it. The evidence of Muhammad Rafique also does not indicate that when he visited the office premises of the accused, he was present there at that time. It is pertinent to point out further that in order to bring home the guilt of the accused, it was imperative upon the prosecution to first show that the accused had information in his possession which he failed to divulge to the officers of the State Bank. But again, no such evidence has been produced by the prosecution against the accused. The two letters, Exhs. D and E clearly indicate. that information had been supplic; d by the accused to Mian Abdul Qadir, Senior Deputy Director, Suite yank of Pakistan. According to the accused, that was the only information that he had in his possession. Since there is nothing to indicate that the accused had any other information available with him, which he had withheld from the Stat Bank, he cannot be held to be guilty of the, contravention of section 43‑A of the Banking Companies Ordinance. Furthermore, as pointed out earlier, since the prosecution have also failed to establish that the accused had any books of account or any other document by which he could divulge further information to the officers of the State Bank, he cannot be held guilty of ,the alleged offence. The prosecution have, therefore, failed to establish any case against the accused to sustain the charge.

5. In the result, the accused is acquitted. N.H.Q./S‑841/K Accused acquitted.