P L D 1964 Dacca 20 (PLP)

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. Appeal allowed.