STATE BANK OF PAKISTAN Versus MESSRS UNI PACKS Abdullah Chandio , Khalid Javed, for the Accused
1. Accused Mrs. Fatima Sultana, was charged under section 83(1-C) of the Banking Companies Ordinance. 1902, on the: allegation that she and her husband Khalil Mohsin were partners of Messrs Uni Packs, a Partnership Firm having its office at 2, Rafiq Sandal Manzil, Frei-e Market, Karachi, and being a banking company had solicited deposits from the public by advertising daily Jang Karachi and were carrying on banking business. They were required/asked by State Bank of Pakistan, and its Inspecting Officers in nursuanee of the directive issued by State Bank under section 43-A (Part II-A) of the Banking Companies Ordinance, 1962, on 6-4-1987, 30-6-1987 and 11-11-1987 to produce the accounts and a balance sheet but they failed to comply with tile above directives and, therefore, they had committed an offence under section 83(1-C) of the aforesaid Ordinance. The accused No.2 was declared absconder, while accused No.3 Fatima Sultan; pleaded not quality to the charge.
2. The complainant has examined Mian Abdul Qadir Senior Deputy Director, State Bank of Pakistan, Karachi, P.W.1, he has produced photostat copy of Notification authorising him to tile complaint as Exh.3, lie has produce the copy of directive calling upon the accused to produce their record for inspection as Exh.4. According to him, accused No.2 replied to them vide letter dated 7th April, 1987, that he was doing business of hire and purchases, copy of the letter has been produced as Exh.5. He has further stated that from this letter, it appears that accused had accepted the deposits of money from public and, therefore, another directive was issued on 30-6-1987, calling upon the accused to produce copy of latest balance sheet, copy of directive has been produced as Exh.6. Accused No.2 produced the balance sheet, which has been produced as Exh.7. The balance sheet Exh.7 indicated that accused had received deposits to the tune of Rs.3,25,000 (Rupees Three laks twenty-five thousand). Consequently the accused were directed to furnish details about their business. Thereafter, the Bank Inspectors, who were authorised by the State Bank of Pakistan, visited the office of the accused several times but no responsible person was available. Therefore, to give them another opportunity, a directive was published in daily DAWN dated 11-11-1987, and its photostat copy has been produced as Exh.8. There was no response from the accused and, therefore, complaint was filed, which has been produced as Exh.9. The accused No.l was a firm, and witness has produced a photostat copy of partnership deed as Exh.10, according to which, accused Mrs. Fatima Sultana and her husband Khalil Mohsin are partners. In cross-examination, he has deposed that he has not filed advertisement alongwith complaint showing that accused No.l had invited deposits of money from public in contravention of the provision of Banking Companies Ordinance 1962, directive Exh.4 was addressed to Messrs Uni Pack Group of Companies. The letter Exh.5 was addressed by accused No.2 as Managing Partner and not as a sole Proprietor. It is denied that Exh.6 was never served upon accused No.]. In fact it was received by Mr. A.A. Samad, Manager, Messrs Uni Pack under his stamp and signature, he has denied that accused No.l was not a registered firm. He has not produc6d any certificate of the Joint Registrar of Firms to this effect. It is denied that Exh.7 was not supplied by the Firm and it was an individual account of accused No.2. According to para 7 of Exh.10, the Bank account was to be operated by accused No.2. In none of the letters, received from accused No.l, the accused No.3 had signed.
3. After close of the prosecution case, the statement of the accused No.3 was recorded under section 342, Cr. P C. in which, not only she has denied the allegations but she has shown ignorance of every thing.
4. The point for consideration, in this case is, whether, the accused failed to produce accounts and balance-sheet as directed by the State Bank of Pakistan and, thereby has committed an offence under section 83 (I-C) of the Banking Companies Ordinance? ,
5. I have heard Mr. Abdullah Chandio, learned counsel appearing for the complainant, Mr. Khalid Javed, learned counsel appearing for the accused, and have gone through the documents.
6. It was contended by Mr. Abdullah Chandio, learned counsel appearing for the complainant that accused Mrs. Fatima Sultana, was partner in the firm accused No.l, which is clear from the copy of partnership deed as Exh.10. lie has further contended that since the accused were carrying on banking business without obtaining necessary permission from the State Bank and had received advances/deposits from the public, they were bound to produce the accounts including the balance sheet before the State Bank. That since the accused had failed to produce the above documents they were liable under section 83(1-C)of the Banking Companies Ordinance.
7. Mr. Khalid Javed, learned counsel appearing for accused No.3 has contended that the accused is a housewife, having three children and is working as Teacher. That the business, if any, was carried on by accused No.2, without the knowledge or express permission of the accused No.3, and he has absconded. It was further contended that accused were sent up under section 27-A read with section 83(1-D) of the Banking Companies Ordinance, 1962, vide Criminal Original Miscellaneous No.13 of 1987, in which the present accused pleaded guilty and she was sentenced to pa v fine of Rs.5,000. That there is nothing on record to show that accused No.3 ever participated in the business or she accepted any advance/deposit from the public, no directive was served on her and, therefore, no offence is made out against her.
8. I have considered the contentions and have gone through the evidence, Accused No.3 is wife of accused No.2. The accused No.2 used to run the business and was carrying on correspondence with the State Bank. He has even submitted the copy of balance sheet which has been produced as Exh.7. The present accused Mrs. Fatima Sultana is a housewife and according to her, she is working as Teacher, and is maintaining three daughters. There is nothing on record to show that she was ever served with any directive from the State Bank. I am conscious of the legal posit ion4iJhat service of one partner is considered as service on all the partners. But looking to the peculiar circumstances of the present case, it was necessary to prove that the present accused was served with any such directive from the State Bank. Even there is nothing on record to show that she had actually participated in the business. She was wife of accused No.2, and was under his influence. She might have signed partnership deed at the instance of accused No.2 without realising consequences. The complainant had filed a separate case under section 27-A of the above Ordinance, in which she pleaded guilty and was sentenced to pay fine of Rs.5,000. She has been made to suffer, on account of misdeeds of her husband. She has been dragged and humiliated in Court and has been facing the prosecution since 1987.
9. In view of the above circumstances and the fact, that no positive evidence has been produced to show that she was conscious partner in the firm and had gained any monetary benefit I am of the considered view that the prosecution has failed to prove its case against the present accused Mrs. Fatima Sultana, beyond reasonable doubt. Therefore, while extending the benefit of doubt to the accused, she is acquitted of the charge. She is on bail and her bail bond stands discharged.
10. I had decided the above appeal on 30-10-1990 by a short order and these are the reasons for `the same.
11. N.H.Q./S-713/K ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.