P L D 1969 Dacca 395 (PLP)

A. K. M. Nurul Islam for Appellant (in Criminal Appeal No. 66 of 1964). Nurul Islam for Respondent (in Criminal Appeal No. 66 of 1964). Sultan Ahmad for the State (in Criminal 4ppeal No. 55 of 1964). Dates of hearing : 12th and 15th January 1968. These two appeals have been heard together as they arise out of the same judgment. The appellants in both the appeals have been convicted under section 23 of the Foreign Exchange Regulation Act and sentenced to rigorous imprison ment for 3 (three) months and a fine of Rs. 4,000 each in default to rigorous imprisonment for 6 (six) months more by Mr. Abdul Quasim, Ex officio Tribunal, Foreign Exchange Regulation, Khulna. The facts of the case may be briefly stated as follows Appellants Abdus Sattar and Tawhid Ali Sardar used to export fish to India from the Sankra Land Customs Station within the district of Khulna. Abdus Sattar was the exporter and Tawhid Ali Sardar was his constituted Attorney in the matter of export. On 27th May 1960, 1st June 1960 and 13th June 1960 Tawhid Ali Sardar obtained three

1. R. P. X. Forms from the Habib Bank Limited, Khulna on behalf of Abdus Sattar who was a constituent of the said bank. Tawhid Ali Sardar signed a declaration on behalf of Abdus Sattar to the effect that the export proceeds would be repatriated to Pakistan through a Bank authorised in dealing with foreign exchange within the prescribed period of two months from the date of the export. Thereafter the appellant exported to India fresh fish and pawns to the tune of Rs. 7,868‑8‑0 on three different dates as mentioned above. The exports were covered by nine export applications submitted to the Land Customs Officers at Sankra. The appellants failed to repatriate the export proceeds within the prescribed period and consequently the State Bank of Pakistan issued two separate notices on the appellants on the 17th January 1961 asking them to explain their failure to repatriate the sale proceeds in compliance with their undertaking. Abdus Sattar offered some sort of explanation and twice prayed for extension of time for the purpose of repatriation, but the Bank wrote back to him that his explanation was not satis factory and directed him to arrange repatriation without further delay. In his second letter he stated that the Indian importer M/s. M. S. Vawda & Co. was trying to evade the payment by withholding the Indian Bills of entry. The Bank sought clarification from M/s. M. S. Vawda & Co., in reply to which the firm stated that Tawhid Ali Sardar had mortgaged the Indian Bills of Entry through his two sons, one of whom was residing in Calcutta and this statement was supported by two letters addressed by Tawhid Ali Sardar to the firm on 12‑8‑1960. This correspon dence ended on 20.6‑1961. But in spite of the extension of time, the appellants did not repatriate the export proceeds. So far as Tawhid Ali Sardar was concerned he was throughout silent after the issue of the notice upon him. These facts are no longer in controversy. According to the prosecution although Abdus Sattar appeared as exporter and Tawhid Ali Sardar as his Attorney in the matter of export, in fact both of them were interested in the business and non‑repatriation of the sale proceeds of the exported goods was intentional and deliberate. The defence of appellant Abdus Sattar was that he was cheated by the Indian Importer and his failure to repatriate the export proceeds was not intentional and he had no dishonest motive in this matter. The plea of Tawhid Ali Sardar is that he acted for Abdus Sattar on the basis of power‑of‑attorney and signed the export papers in that capacity without having any connection with the export business itself and that, as such, he is not bound by the undertaking to repatriate the sale proceeds of the exported goods and cannot legally be held liable for the failure in the matter of repatria tion. His further defence is that the statutory notice under section 23(3) of the Foreign Exchange Regulation Act was not served on him and as such he cannot be held liable or the default Tawhid Ali Sardar is the appellant in Appeal No. 55 of 1961 and Abdus Sattar is the appellant in Appeal No. 66 of 1964. The law applicable to this case may be clarified at the outset conviction under section 23 of the Foreign Exchange Regulation Act can only be based upon a finding that the non‑repatriation of the export proceeds was intentional and deliberate. There cannot be any conviction under this section if the exporter was unable to repatriate the sale proceeds for reasons and circumstances beyond his control. This postulates honest attempts on his part to honour the undertaking. The immunity will not be available to him if his conduct is mala fide. Merely taking some steps to show that he made attempts at repatriation will not exonerate him from the liability of con viction. It is only when it is proved that the accused made bona fide attempts to repatriate the sale proceeds of the exported goods in accordance with his undertaking that he will be entitled to acquittal. Reference may be made in this connection to the case of M. A. Jabbar Chowdhury v. The State (15 D L R 83). Exhibits 1, 2 and 3 are the I. R. P. X. forms and Exhs. 9 to 17 are the export applications. It is an unchallenged fact that Abdus Sattar was the exporter and Tawhid Ali Sardar was shown as his constituted attorney. I. R. P. X. forms were obtained from the Habib Bank, Khulna by Tawhid Ali Sardar and the undertaking to repatriate the export proceeds was signed by him for Abdus Sattar. These facts have been testified to by P. W. 8 Syed Jamal Hashim, an assistant in the Habib Bank, Khulna. Tawhid Alt; Sardar signed the export papers, namely, the I. R. P. X. forms and the export applica tions on the basis of the power‑of‑attorney executed in his favour by Abdus Sattar. The facts have been testified to by P. W. 4 Monawar Hossain, P. W. 5, C. A. Ibrahim, P. W. 6 Moniruddin Ahmad and P. W. 7 S. M. Wazed Ali, Customs Officers who dealt with the export applications and who allowed the export applica tions in question. That the export proceeds have not been repatriated is clear from the evidence of P. W. 8 Jamal Hashim and Exh. 4 a certificate issued by the Habib Bank. The evidence on record shows that Tawhid Ali Sardar remained silent throughout and did not even ask for any extension of time. This is, of course, consistent with his defence that he was merely an attorney of Abdus Sattar and it is in that capacity that he signed the export papers. In reply to correspondence by the State Bank, the importer stated in the letter Exh. 7(4) that the Bills of entry in question were mortgaged by Tawhid Ali Sardar with the help of his sons, one of whom living in Calcutta. Two letters written by Tawhid Ali Sardar to the importer on the 12th August 1960 were enclosed with the aforesaid letter and they are Exh 7(5) and 7(6). These are copies of the original letters Exhs. 18 and 18(1) which bear the signature of Tawhid Ali S3rdar. Exh. 18(1) relates to a different export but Exh. 18 relates to the export in question. Therein it was stated: ‑ "With reference to the Indian Bills of Entry in respect of my above party which still remain unnegotiated, I hereby, promise to you to get the same presented to the Bank within 25 days from date. The above Bills of entry are mort gatted by me and will be released soon." At the trial Tawhid Ali denied his signature in Exh. 18, but his signature and genuineness of the letter are no longer disputed. Exh. 18 clearly shows that he promised to have the Indian Bills presented to the Indian Bank within 25 days. This leaves no room for doubt that he was dealing with the matter as a real exporter and had full power and authority to deal with the Bills of Entry and to enter into the monetary transactions. The contention of this appellant that he signed the export papers merely as an agent of Abdus Sattar and had no interest in the business cannot therefore, be accepted as correct. I have no doubt that appellant Tawhid Ali Sardar had the same interest in the business as Abdus Sattar himself. He made no attempt to repatriate the sale proceeds o the goods and this distinctly shows that non‑repatriation of the export proceeds on his part was intentional and deliberate. As regards Abdus Sattar, he wrote the letters, Exhs. 7 and 7(2) to the State Bank on 30th January 1961 and 4th May 1961. respectively. In these letters he criticised the law relating to repatriation characterising them as harsh to the exporter and favourable to the importer. He alleged that the importer was trying to cheat him. In Exh. 7(2) he stated that he had written about the "state of affairs to our Co. Secretary Deputy High Commissioner Office of Pakistan at Calcutta and added that he was expecting a reply very soon. He promised to furnish the State Bank with a copy of the reply when received. There is‑ nothing to show that there was any such correspondence between this appellant and the Pakistan Deputy High Commissioner's Officer in Calcutta with regard to the repatriation of the sale proceeds of this export. The appellant has not repatriated proceeds of this export. The appellant has not produced even a scrap of paper to show that he made any such correspondence. This is clearly indicative of the fact that he was trying to evade payment by means fair or foul and his conduct was male fide. Furthermore, it appears from the evidence of P. W. 8 that the appellants failed to get back the money under the letter of credit system, the repatria tion could still be made on collection basis. It has been submitted by the learned Advocate for this appellant that money could not be collected on collection basis inasmuch as Tawhid Ali Sardar had mortgaged the Bills of Entry. This would rather indicate collusion between the appellants in these two appeals. On an appraisal of the evidence on record I feel satisfied that Abdus Sattar's default in the matter of repatriation of the export goods was also intentional and deliberate. Both the appellants have been rightly convicted under section 23 of the Foreign Exchange Regulation Act. The learned Advocates representing the appellants have referred me to a decision of the Supreme Court of Pakistan in the case of the State Bank of Pakistan, Dacca v. Abdus Sattar who was convicted by the Tribunal under section 23 of the Foreign Exchange Regulation Act and sentenced to a term of imprison ment and a fine of Rs. 5,

000. Their Lordships of the Supreme Court altered the sentence to the period of imprisonment already undergone and imposed a fine of rupees ten thousand with a default sentence of simple, imprisonment for six months in view of the fact that more than seven years had elapsed since the default was made. In the present case also more than seven years have elapsed since the appellants made the default. I, therefore, aver the sentence passed on each of them to the period of imprisonment already undergone and to a fine of rupees six thousand, or in default six months' simple imprisonment. The appeals are accordingly dismissed subject to the modifi cation of sentence as indicated above. Stay orders passed in both the appeals are vacated, and the appellants are directed to surrender to their bail bonds forthwith. A. E./S. A. H.