1971 PLP 642 (SCMR)

CONNELIUS, C. J.‑--Special leave was gives to the State Bank of Pakistan to appeal against the judgment‑of a learned Single Judge of the High Court of East Pakistan acquitting the respon dent who had been charged with an offence punishable under section 23 of the Foreign Exchange Regulation Act. The case was that the respondent, Mahboobar Rahman had exported hides to India from East Pakistan to the value of about Rs. 25,000 under proper authorisations. He had made a declaration as required by law regarding the repatriation of the foreign exchange proceeds of the export in the following terms :‑‑ "I undertake to deliver to the Bank mentioned below the foreign exchange proceeds resulting from the export of these goods within two months of the date of shipment." The Bank in question was the Habib Bank at Khulna, which has certified to the relevant authority that Mr. Mahboobar Rahman was a bona fide business man who had made arrangements with them "for the realization of the export proceeds of these good". The goods were taken to the border in trucks and there transhipped into bullock‑carts. Mahboobar Rahman went with the trucks up to the border. There is naturally no evidence to show what happened to the goods thereafter. The accused himself was not asked to give details of the person to whom he had contracted to sell them. This was not ascertained even from the Habib Bank, although two employees of the Bank appeared to give evidence, namely, Khoruhed Anwar, P. W. 8, and Kazi Ahsanullah D. W.

1. The Bank issued a certificate which is Exh. 10 in the case in which it was stated that the bills in respect of the export were submitted for collection on specified dates, with the result stated below :‑ "Proceeds not realised. Bills returned unpaid as the drawees could not pay and documents were outstanding for a long time in Calcutta." From this it appears that the bills were drawn in a specified name so that there need be no doubt that in fact through the Bank, Mahboobar Rahman had contracted to supply the hides to a particular person in the way of bona fide trade. The witness Khorshed Anwar, P. W. 8 who described himself as an Assistant at the Bank in Khulna, said in cross‑examination that all the relevant papers were sent to the Agent of the Branch of the Habib Bank in Calcutta for collection of the sale proceeds. They were returned as unpaid. No complaint was made by the Calcutta office that the accused Mahboobar Rahman had intentionally caused any delay in the sale of the exported goods or in the realization of the sale proceeds or that he had directly received the value of the bills in Calcutta. Kazi Ahsanullah, who is Agent of the Bank in Khulna, stated clearly that the bills were returned upaid "because the drawee did not honour the bill". Failure on the part of a drawee of a Bill to honour the bill is a fair common incident of trade, and in this case, there was direct evidence of responsible employees of the Habib Bank, whose proceedings were conducted with due formality, to show that in this particular case that was what happened so that the money was lost to the exporter. No evidence was led from which the slightest inference can be drawn directly in India. In these circumstances, the question arises whether there was any violation of the _ undertaking given in the declaration form referred to above. The undertaking was to deliver to the Habib Bank at Khulna "the foreign exchange proceeds resulting from the export" and the evidence led in the case clearly proves that in fact there was no foreign exchange earning from the transaction. If there had been, it would have been unnecessary for the exporter to deliver it to the Bank because he had so placed himself in relation to the Bank, that the Bank was to receive the foreign exchange proceeds directly without his intervention, in the normal way of trade. The learned Advocate‑General, when asked what offence the respondent could be thought to have committed, referred to the provision of sections 4 and 12 of the Foreign Exchange Regulation Act. Under subsection (3) of section 4, when a person other than an authorised dealer acquires foreign exchange under a specified condition, he is bound to comply with such conditions, and if he cannot comply with it, he is obliged to sell the foreign exchange acquired by him to an authorised dealer. It is clear that this provision has no application where no foreign exchange is acquired. The other provisions in section 4 have no relevancy to the present case. The provisions in section 12 which were referred to by the learned Advocate‑General are contained in subsection (2) which prohibits an exporter by act or omission from doing anything to delay the sale of the exported goods to an unreasonable extent, from receiving payment for the goods other wise than in the prescribed manner, and from receiving less than the full amount payable by the foreign buyer. Here, there was positive evidence led to show that the exporter in this case did not delay disposal of the goods. In fact, he delivered them over to the purchaser at the border, having arranged that the payment should be received through the Habib Bank. It is also shown by evidence that he has not received any payment whatever for the goods be exported. In these circumstances, there can be no doubt that no offence of any kind punishable under the foreign exchange regulation act was shown to have been committed by the respondent, and he was therefore rightly acquitted. This appeal is dismissed. Appeal dismissed.