Md. Kawsar Jahan Vs. The State, 3 LNJ (2014) 839

Case No: Criminal Appeal No. 4445 of 2007

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. A.K.M. Zahid Sarwar,Mr. Abdul Matin Khasru,,

Citation: 3 LNJ (2014) 839

Case Year: 2014

Appellant: Md. Kawsar Jahan

Respondent: The State

Subject: FIR,

Delivery Date: 2010-05-02

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Muhammad Dastagir Husain, J
And
A. K. M. Zahirul Hoque, J

Judgment on
02.05.2010
  Md. Kawsar Jahan
...Convict- appellants.
Versus
The State
...Respondent.
 
 
Foreign Exchange Regulation Act (VII of 1947)
Section 23(3)
Code of Criminal Procedure (V of 1898)
Section 4(1)(h)
In the present case the F.I.R was lodged by the S.I. of police after about one month from the date of his arrest and that was too without any authority which was required under section 23(3) of the Foreign Exchange Regulation Act, 1947. Even the Charge sheet that has been filed in the present case can not be treated as complaint in as much as the said charge sheet being a police report can not be regarded as a complaint within the meaning of section 4(1)(h) of the Code of Criminal Procedure that is the complain  given under the section excluded the report of a  police officer. The lodgment of the F.I.R by the sub inspector of police Md. Mizanur Rahman, submission of charge  sheet dated 1.6.2007 by S.I. Mohammad Shahid Uddin and cognizance taken by the tribunal and therefore framing of charge by the said tribunal against the appellant in the present case be contrary to and in violation of requirements of section 23(2) and (3) of the Foreign Exchange Regulation Act, 1947 are bad in law. In the present case the police officer along with the combined force has in contravention of the safe guard provided in section 23 of the Foreign Exchange Regulation Act, 1947 initiated the present criminal case against the appellant by lodging the F.I.R treating the alleged offence under the said Act. Neither getting any letter of authority nor it has been lodged by the Bangladesh Bank. Though a permission has been given by the Bangladesh Bank about one month later from the date of occurrence  as well as arrest of the appellant and on consideration  the evidence  of P.W. 18 who issued letter  of permission  ext. 7 after 1 month without  any reasons  thus a suggestion was given  from the defence  as mechanical permission so the FIR. itself is a malafide one under the facts and circumstances of the case. The lodgment of the F.I.R can not be construed to have accorded the requisite authority to the informant to lodge the present criminal case against the appellant under the Foreign Exchange Regulation. So the initiation of the present case have not been validly initiated in terms of the requirements of Section 23 of the Foreign Exchange Regulation Act. . . . (71, 73, 74 and 75)
 
Mr. Abdul Matin Khasru with
Mrs. Hamida Chowdhury , Adv.
...For the appellant.

Mr. A.K.M. Zahid Sarwar, D.A.G.
...For the State.

Criminal Appeal No. 4445 of 2007
 
JUDGMENT
A.K.M. Zahirul Hoque, J:
 
This appeal is directed against the judgment and order of conviction dated 08.08.2007 passed by the Foreign Exchange Regulation Tribunal and Sessions Judge, 1st Court Sylhet in Foreign Exchange Regulation Case No. 3 of 2007 arising out of kotwali Police Station Case No. 132 of 2007 dated 26.03.2007 convicting the appellant under section 23(1)of the Foreign Exchange Regulation Act,  1947 and sentencing him to suffer imprisonment for 4(four)  years and also confiscated of US $ 4,745, pounds 5476.85 and taka27,80,222/= in favour of the State.

The prosecution case in short is that on 26.02 2007 officer of Bangladesh Bank in presence of police, Rab. Army and Magistrate inspected the Jahan’s Money Exchange Agency owned by the appellant at Amborkhana, 8, Surma Market, Ground floor, Sonali Bank Bhaban, Sylhet at 17.15 hours of the appellant  and upon verifying the concern register found  irregularities and dissimilarity  between the register and  the balance of currency.  It is also stated that he found balance of US $dollar 15,371 in the register but these were buy or sale record in the register  and it was also found that on 19.02. 2007 the accused sold dollar 103,673 to Sonali Bank and there was balance of 1750 pounds as shown in the register on 12.02.2007 but no record of buy and sale was available in the said register . It is further also stated that the accused sold on 17,135 pounds to Sonali Bank and  they found 5476.85 pounds at the time of searching and it was further stated that the accused  could not show the sale certificate of the dollars and  pounds as well as photocopies of passport  at the time of inspection by  the authority who seized three registrar relating to Exchange of dollars pounds and uro currencies along 5476.85  pounds , US $4745 dollars and 27,80,622  Bangladeshi taka  and arrested the accused.

That subsequently the kotwali Police registered the Case as Kotwali Police Station Case No.132 dated 26.03.2007 against the appellant under section 13 of the provision of Money Laundering Act, 2002 read with section 23(1) of the Foreign Exchange Regulation Act, 1947.

That after investigation charge sheet was submitted being No. 575 dated 01.06. 2007 against the appellant under section 23(1) of the Foreign Exchange Regulation Act. Thereafter the case sent to the learned Additional Session judge, 3rd Court Registered as being F.E. R. T case N0.03 of 2007 who framed charge against the appellant under section 23(2) of the Foreign Exchange Regulation Act, 1947.

That during trial the prosecution examined as many as 24 witnesses and 4 witnesses were examined on behalf of the defence and after conclusion of trial the learned trial Court found the appellant guilty of the offence   and convicted the appellant under section 23(1) of the Foreign Exchange Regulation Act, 1947 and sentencing him to suffer imprisonment for 4(four) years and confiscated the said dollars pounds and taka in favour of the State.

That being aggrieved by and dissatisfied with judgment and order of conviction, the appellant preferred the instant appeal.

That the learned advocate Mr. Abdul Matin Khasru appeared on behalf of the appellant and he has taken us to the F. I. R., P.Ws. and D.Ws. and relevant papers and documents and submits that the facts and circumstances  of the case no offence has been disclosed against the appellant  which can attract the provision of Foreign Exchange Regulation Act , 1947. He also submitted that the charge of section 19 A and 23 of the said act does not attract the appellant with the alleged offence and he further submits that the sub-inspector of police had no authority to lodge the F.I.R. against the appellant their fainitiation of the case was without jurisdiction and subsequent trial and impugned judgment is also bed in law. and he also submitted that as per Government circular  dated 06.08.2001 the appellant is entitled   to hold 25,000 US dollars as a  bonafide license  holder but the seized dollar was 12,959 and then the searze was made illegally and lastly he  submitted that the appellant was not given an opportunity to submit his account  which is saiving clams for the appellant to initiate and proceed a case under section 19A and  23 (1) of the said Act and therefore the proceeding as well as impugned judgment and order of conviction and sentence is also bad in law thus the same is liable to be set aside.

The learned advocate Mr. Abdul Matain Khasru  also appeared on behalf  of the appellant and submits that the prosecution  did not file any petition of complaint  as defined under section 4(1)(k)of the Code of Criminal procedure which was required to  file  as per  section 23(3) the Foreign Exchange Regulation Act, 1947.

He also submits that the informant had no authority to lodge the F. I. R. without the authority of the Government or instead of Bangladesh Bank and therefore the initiation and proceeding of the case against the appellant and conviction and sentence thereunder is bad in law and thus liable to be set aside.

The learned Deputy Attorney General appearing on behalf of the State submits in support of the impugned judgment and order and he submits that the appellant has committed the offence of section 19A of the Foreign Exchange Regulation Act, 1947. as because appellant  did not submit the proper accounts of buying and selling of the Foreign currency at the time of inspection of his business firm and therefore the appellant contravented the provision of this act and he further submits that as there are sufficient materials on record against the appellant to connect him with the charge of section 19A and 23(1) of the Foreign Exchange Regulation Act, 1947 and the impugned judgment  was legal and proper and then the appeal is liable to be dismissed.

Now let us discuss and analysis the evidence as led by the parties.

P.W.1 MD. Mizanur  Rahnan S.I. of police informant stated in his chief that he lodge the F.I.R. while he was performed at sylhet Kotwali Police Station on 26.02.2007he along with constable Rafiquzzaman Shahadat Hossain, Abul Hasem were on duty got secret information that a combined force raided at the ground floor of Sonali Bank at Amborkhana at 7.15 hours and asked the founder director Kowser Jahan of JAhan”s Money Exchange about the book of accounts with the currency but he failed  to give satisfactory answer and on the spot it was found as per record dated 14.02.2007 that the balance shown as US. $ dollars 15,371 pounds as per the statement of Sonali Bank dated 19.02.2007 he sold 1,03,673 $dollars similarly as per record dated 12.02.2007 the balance shown as 1750 pouns as per statement of Sonali Bank  dated 19.02.2007, and 75,135 pound  has been sold . Besides that 2350 pound torned notes of different value were found in that money Exchange .It was further stated that the said notes were returned from the Sonali Bank of Drgah gate Corporate Branch on 19.02.2007 as defective notes. Thereafter a seizure was made in presence of Nazrul Islam Chowdhury, Zillur Rahman and Swapan for US. dollar 4745, British pound 3080 and torned $ 2350 including taka 28,08,22/=along with three ledger books and trade certificate of dollar  and pound and the appellant was arrested on the said date and therefore filed an application for seeking permission from Bangladesh Bank and on 25.03.2007 got the permission from Bangladesh Bank and there after lodged the F.I.R. on 26.3.2007 with kotwali Police Station and it was further stated that the appellant was shown arrested under section 16 of the Emergency power rules ,2007 and made an application for detention under section 3(2) of the special power Act, 1972 and the seized currency deposited to the treasury of Bangladesh Bank  and the F.I.R. was marked as exhibit 1 and deposits slips of currency were also exhibited as exhibit 3 series  and seizure list was exhibited as exhibit -2 and the application for permission along with the permission letter were also exhibited as exhibit 4 and 5 and the sized ledger books were exhibited as  material exhibit I-III and he identified the accused on the dock.

In his cross examination on behalf of the accused, he stated that he did not remember who was along with him from the combined force. There are eight money exchange shops on the road of Jahan Money Exchange. At the time of entering into the Jahan Money Exchange the accused and his employees were present there. On the date of   searching of Jahan Money Exchange , the other money exchange shop’s were not searched and he also stated that  it is the right of the Citizen to hold Bangladeshi currency and he also stated that the accused is also a money exchange license holder. He does not know that the license of the accused was renewed on 05.11.2006 and it was valid upto 18.10.2007 and the license renewed by Bangladesh Bank. He did not know whether Bangladesh Bank made audit after every three months or not and he also did not know that the trade license of the accused was renewed up to 30.06.2007 and also does not know whether the accused used to pay the income tax and vat regularly and he also does not know whether the accused Kowsar Jahan was suffering from Arthertis Since long and he got treatment from Landon and he does not know whether  he was unable  to move and he also does  not know  as per circular of Bangladesh Bank the license holder Money Exchange can hold up to 25,000 US Dollars and he also stated that he seized 5,476.85 U.K. Pound and 4,755 US Dollar . He does not know about the circular and he also does not know about the deposit of 75,135 pound with the Sonali Bank Corporate Branch by the accused and after scrutiny Bank refunded 2350 pound as defective notes on 26.02.2007 to the accused. He also stated that he does not know whether a person come from abroad can hold foreign currency equivalent to 5000 Dollars and he also does not know whether the accounts of each month is to file within the 7th date of next month and he denied the suggestion that the accused shown his upto date accounts and documents at the spot and the manager was  on leave at that relevant time and as such the register could not be maintained and he denied the suggestion about the  commission of Money Laundering offence by the accused and also denied the suggestion  that the case was baseless, false against the accused.

P.W. 2 Md. Nazrul Islam Chowdhury, proprietor of Jogajog  Enterprise , stated that on 26.02.2007 at 20.10 hours while he was in his shop at that time S.I. Mizanur Rahman along with Combined Force raided Jahan Money Exchange and from that money exchange Dollars, Pound  and Bangladeshi Taka and three Register books were seized and seizure was made wherein he put his signature and those were  exhibited.

In his cross examination, he stated that the accused has the money exchange shop’s since long and he has good reputation in his business. He is a establish and old business man. The accused is sick for the last 4/5 years. He further stated that the Law Enforce Agencies refused to see papers and documents of the accused and said that it could be seen before the Court. He did not see the accused doing Hundi Business or Money Laundering. He Knows the accused as a honest business man.

P.W. 3 Zillur Rahman, was the accountant of Ali Money Exchange. He stated that on 26.02.2007 at 20.10 hours S.I. Mizanur Rahman along with Combined Law Enforcies Agencies raided the Jahan Money Exchange and seized the Pound, Dollar, Bangladeshi Taka, and three Register and he put his signature in the Seizure list.

In his cross examination he stated that he knows the accused person and he is a honest businessman and he had been suffering from Parkinson disease.      

P.W. 4 Showpon Shen, is an employee of Jahan Money Exchange he stated that on 26.2.2007 at 1.45 hours to 2 hours. the combined law Enforces Agency raided the Jahan Money Exchange and seized three ledger books, Foreign currency and Bangladeshi Taka and he put his signature in  the said seizure list .
In his cross examination he stated that he is an employee of Jahan Money Exchange and he used to make photocopy of passport and relevant documenters and preserved the same.

P.W. 5. Md. Ataur Rahman, he is a businessman of Surma Super Market. He did not see the occurrence and he stated that the Jahan Money Exchange was raided at 1.45 pm to 2 pm and he also declared hostile.

In his cross examination he stated that he passed S.S.C and he knows the Kawser Jahan since 1988  and he stated that Kowser Jahan has a Money Exchange business .  He denied the suggestion that the Kawser Jahan  were request to give correct account to combined law Enforcing agencies and they seized foreign currency , three ledger books and Bangladeshi Taka and in his cross examination by the accused he stated that 40 shops of the road of Jahan Money Exchange and he also stated that Kawser Jahan is a hones business man.

P.W. 6  Md. Moin Uddin Chowdhury, is a director of  Audud Money Exchange Agency and he stated in his chief on 26.2.2007 combined forces raided the Jahan Money Exchange  at  2 p.m and seized pounds , dollars , Taka and three ledger books from that money exchange and arrested  the accused Kawser Jahan and he is on the dock.

He was declared hostile and he stated in his cross examination  stated that he knows the Kawser Jahan since long time and he denied the suggestion but he stated  false due   to bias ness by the accused Kawser Jahan. In cross examination he stated that Kowser Jahan is also a director of Home Land Life Insurance. His father was a school teacher and he also stated that money exchange can occupi 25,oo US dollars for business purpose and that is to preserve the endorsement certificate from the passenger . The Bangladesh Bank used to issue a certificate after one year and the account of each month used to be submitted before the Bangladesh Bank by 7th date of the next month. 

P.W. 6, Mainuddin Chowdhury, is a director of Audud Money Exchange Agency. He stated in his chief on 26.2.2007 that combined force raided the Jahan Money Exchange at about 2 P.M and seized Pounds, Dollars, and Taka and three ledger books from that money exhange and arrested the accused Kawser Jahan. He is on the dock.

He was declared hostile and he stated in his cross examination that he knows Kawser Jahan since long time and he denied the suggestion but he stated false due to biasness by the Kawser Jahan. 

In his cross examination he stated that Kawser Jahan is also a director of Homeland Life Insurance. His father was a school teacher and he also stated that the money exchange hold 25,000/ US Dollars and that is to preserve the endorsement certificate from the passengers. Bangladesh Bank used to renewed the certificate after one year and the account of each month used to submitted before the Bangladesh Bank by7th date of the next month.

P.W. 7 Debashis Chakrabartee ,  is the Manager of the Jahan Money Exchange  at the relevant time. On the date of occurrence on 26.2.2007 he was absence. He has heard that foreign currency and three ledger books including Bangladeshi taka were seized by the combined forces.

In his cross examination he stated that he was serving as manager since 8-9 years under the Jahan Money Exchange. He denied the Suggestion that he was present at the date of occurrence and he also denied the suggestion in his presence the combined force seized the foreign currency Bangladeshi Taka and three ledger books. He also declared hostile by the state and on cross examination on behalf of the accused he stated that on 26.2.2007 he was absence due to sickness of his father and he was on leave from 15.2.2007 to 28.2.2007. He also stated that Kawser Jahan also sick since long time. He also stated that he himself maintained the ledger books up to date and in his absence it was maintained in separate sheet and thereafter he used to make up to date and Kawser Jahan is a bonafide business man.

P.W. 8 Badrul Islam, he was declared hostile.

P.W. 9 S.I.  Nasimul Islam, who was  a duty officer on 26.3.2007 at that relevant time  he started the P.S. case on the allegation of S. I. Mizanur Rahman and filled up the F.I.R column and he put  his signature  which was marked as Exhibit-6. He stated in his cross examination that the F.I.R has been lodged after one month and  place of occurrence is distance 2(two) k.m from the police Station and the informant is his accompany.

P.W. 10 Constable Abul Hasan  stated in his chief that on 26.2.2007 he was a man of raiding party along with S.I. Mizanur Rahman he went there at 5.15 pm  and  he was an duty up to 8.30 pm. Informant seized Dollars, Pound, and registered books and arrested the accused . He is on the dock.

In his cross examination he stated that he did not give discription of seized articles. He was on the duty in the building.

P.W. 11. A.K.M. Fazlul Hoque, is a Assistant Director of Bangladesh Bank. He stated in his chief that on 26.2.2007 at about 3.oo pm. He went to the place of occurrence Shurma Super Market, Amborkhana, Sylhet and on Ashotos Dhar Chowdhury, and Joint Director was along with him. and he saw that the combined Law enforce Agencies raided the ground floor of the Market and on the request of the combined law enforce agencies he made inspection of Jhan Money Exchange and on inspection he found the Dallars, buy and sale register as account US. Dolalrs 15,371 and Markin Dolars 4745 and he found dissimilarity of the account of foreign currency and cash and he got Tk. 27,0822 and he asked about the dissimilarity to the accused  on his quary accused Kawser Jahan explained that note has sold pound  to the Sonali Bank on 19.2.2007 and Bank authority on scrutiny was found  2350 as defective notes which was refunded to him on 26.2.2007. The accused appellant did not show endorsement certificate and photocopy of passport. Therefore considering facts and circumstances the accused committed the offence of foreign Exchange Regulation Act 1947. Thereafter he also stated that Bangladeshi Taka and Foreign Exchange along with register were seized and by order of the Court the said seized Dollars, Pounds, and Bangladeshi Taka was deposited of the Bangladesh Bank and Joint Manager of   Bangladesh Bank Mr. Abdul Matin  being the  jimmader of the said seized articles.

In his cross examination on behalf of the accused he stated that he did not lodge the Case and also stated that he was informed at about 2.30 hours  and ten money exchange firm situated beside the place of occurrence and he also stated he did not file any case as plaintiff and he also stated that  the accused  got the license on   19.10.1998 and since then he runs  business properly  18.10.2007 the license was  valid up to 18.10.2007 they used  to renew after  considering the papers and documents every year. Bangladesh Bank make audit after every 3 month. Money Exchange firm used to file return for each month by the 7th date of the next month Money exchange can hold 25,000 US Dollars or equivalent foreign currency. He denied the suggestion that on 19.2.2007 Jahan Money Exchange sold 75, 135 British Pounds to Sonali Bank Corporate Branch, Sylhet. Foreign Currency can buy by the money exchange firm. The photo copy of the passport used to preserved by the said firm  and encashment certificate can be issued in favour of the firm and he denied the suggestion that at the time of occurrence the accused show photocopy and encashment certificate and passport and he also stated that he  got  Tka 27,08,222 Bangladeshi Taka at the time  of  operation of the accused firm and he did not know the said money belong  by accused himself or not he admitted that for the purpose  of buying the dollars and Pound it is  required of Bangladeshi Taka and he also admitted that  to hold Bangladeshi Taka in Bangladesh no offence of foreign currency can be constituted. He denied the suggestion of the accused.

P.W. 12 Ashutosh Dhar Chowdhury, Joint Director of Bangladesh Bank, Sylhet, he stated in his chief that on 26.2.2007 as per the direction of the managing director he along  Assistant Director A.K.M. Fazlul Hoque in presence of Magistrate he made an inspection the Jahan Money Exchange, Ambor Khana, Sylhet and on inspection it was found dissimilarity between the foreign currency with account and also found defective notes and the accused did not show the relevant papers and documents. Thereafter seized the foreign currency, Bangladeshi Taka and register. He identified the accused who is on the dock.

In cross examination by the accused he stated that no one file a case on behalf of the Bangladesh Bank.  He stated that he did not deposit any money in the Bank and he did not know withdrawn the money of the accused’s   account. He admitted that to hold the Bangladeshi Taka is legal. He admitted that before inspection of the firm he did not get any allegation before against that firm. He denied that the accused Kawser Janan acquired the foreign currency by operation of law and all the relevant documents shown to them. He denied that he shows the torned note and defectives notes. He denied the suggestion that the accused committed offence of the Foreign Exchange Regulation Act.

P.W. 13 Pronab Kumar Debnath, Joint director of Bangladesh Bank, Sylhet.  He stated that in chief that on 26.2.2007 as per direction of the Managing director of his Bank he along with others made inspection at the Jahan Money Exchange in presence of Magistrate and   combined Law Enforce Agencies and found dissimilarity of the accounts and foreign currency Pound and Dollars. The accused shows the relevant papers and documents and therefore seized the dollars, pounds and relevant papers and documents etc. and arrested the accused.

In his cross examination he stated that no case has been filed from the Bangladesh Bank. He denied the suggestion of the accused that he did not get any dissimilarity in the accounts.

P.W. 14. Md. Abdul Hasif, Deputy Director of Bangladesh Bank, Sylhet. He stated in his chief that as per order of the managing director he along with their officers made an inspection of the accused firm and on inspection found dissimilarity with the accounts and that accused did not show the relevant papers and documents and thereafter the informant seized the dollars, pound and registered and arrested the accused. He identified the accused on the dock.

In his cross examination he stated that he made inspection of ten firms respectively and denied the suggestion that the accused violated any Act of Foreign Exchange Regulation.

P.W. 15, Constable Rafiqurzzaman, he stated in his chief that on 26.2.2007 while he was with Kotwali Police Station on the order of combined forces for holding an inspection of the ground floor of Sonali Bank of the Amber Khana made his duty with the combined force and there he raided at Jahan Money Exchange at 5.15 pm and after inspection of the S.I. Mizanur Rahman seized foreign currency and others.
In his cross examination on behalf of the accused he stated that he did not enter into the Jahan Money Exchange and did not give any description of the seized articles and he did not   put any signature in the seizure list . He denied the suggestion of the accused.

P.W. 16 Constable Shadat Hossain, he stated in his chief that on 26.2.2007. he went to the firm of the accused along with S I Mizanur Rahman and others and after making inspection foreign currency, relevant papers and documents were seized by  S.I. Mizanur Rahman.

In his cross examination he stated that he did not see what things were seized. He did not give any statement to the Investigation Officer and he denied the suggestion of the accused.

P.W. 17  Szzadul Hasan, Magistrate 2nd Class, he stated in  his chief that on 26.2.2007 as per the order of the District Magistrate he went to the Jahan Money Exchange  and in where the officers of Bangladesh Bank made an inspection of  Jahan Money Exchange , register and documents and at that time it got dissimilarity in the register,  foreign currency and Bangladeshi Taka and thereafter seized the same and seizure list has been prepared at 8-10 pm and after making seizure list arrested the accused Kawsar Jahan  and he  identified the accused  in the dock and he stated in cross examination on behalf of the accused. that District Magistrate did not give him any written order he did not give details description of the seized articles. He stated that he did not ask anything to the accused and Investigation Officer did not ask him. He denied the suggestion of the accused.

P.W. 18 Bimol Chandra Banarjee, is a Deputy Director, Money Laundering prevention Division of Bangladesh Bank, head office Dhaka. On the application of the Kotwali Police Station he issued permission letter for investigation and to file a case. and the said letter was exhibited as exhibit -7.

In cross examination he stated that Bangladesh Bank or any officer of Bank is not informant of the case and he denied that has no authority to give permission to file a case.  He stated that police filed an application on 12.3.2007. He denied the suggestion that the permission was given mechanical without considering the documents. He stated that he did not go to the place of occurrence. He denied the suggestion that he has no personal Knowledge.

P.W. 19 Abdul Matin, Joint Manager of Bangladesh Bank, Sylhet. He stated in his Chief that on 28.2.2007 that S.I. Mizanur Rahman as per the order of the Court deposited  three packet of alamats maintain in the Safe  Guard of Bangladesh Bank and which has been  deposited  by issuing  receipt.

In his cross examination he stated that he did not identify the material by opening the box he also did not know what materials are in the box. He denied the suggestion that the seized goods are not connected with this case.

P.W. 20. Abdul Barek, he is a member of RAB 9 and DAD stated in his chief that on 26.2.2007 while he was on duty at Sylhet town at about 1.45 hours. He met with the team with the combined force at ground floor of the Sonali Bank, Amber Khan, Sylhet and he went to the accused Kawser Jahan Money Exchange at 5.15 pm. Where officer of the Bangladesh Bank made an inspection and found dissimilarity with the register and foreign exchange  and also found defective notes and also stated that  27,80, 222 taka was recovered from the possession of the accused and S.I. Mizanur Rahman made seizure list and he arrested the accused.  The accused is on the dock.

In his cross examination by the accused. he stated that he raided at about 2-pm and he stated that investigating officer did not examine him . He denied the suggestion of the accused.

P.W. 21 Md. Golam Mostafa , is a member of RAB- 9 stated in his chief that he raided the ground floor of Sonali Bank on 26.2.2007 along with Abdul Barek and others and officers of Bangladesh Bank made inspection and found dissimilarity of the accounts in the ledger books and foreign currency . Thereafter seized the said currency along with the register from the firm of the accused and the accused was arrested   who was on the dock.

In cross examination he stated that he raided the market at about 5 pm. He denied the suggestion of the accused.

P.W. 22 Nayek Md. Kamal Hossain was tendered and cross was declined.
 P.W. 23 Md. Khalilur Rahman, he was a member of RAB and stated in his chief on 26.2.2007 he went to the Sonali Bank at Ambor khana, Sylhet and raided with the combined forces and on inspection of the Jahan Money Exchange and found dissimilarity with the Dolars, Pound, and Bangladeshi Taka and registered books and those were seized.

In his cross examination has stated that he did not describe the details of   notes and he denied the suggestion of the accused. 

P.W. 24 Md. Shahed Uddin, who is inspector of police who hold investigation of the case.  He stated in his chief that after considered the relevant papers and documents of the case and he visited the place of occurrence and prepared the sketch map with index and recorded statement under section 161 of the Code of Criminal Procedure of the witnesses and issued safe deposit receipt, arrested  the accused and after getting prima-facie case and also  permission from the  higher authority and he  submitted police report being  charge sheet No. 447 dated 23.4.2007 under section 13 of the Prevention of  Money leandaring Act 2002 and  section 23 (1) of the Foreign Exchange Regulation Act. 1947 and also submitted Charge sheet being No. 575 dated 1.6.2007 under Section 23(1) of the Foreign Exchange Regulation  Act, 1974. The seized Articles before the Court including the foreign currency and others exhibited and registered.

In Cross examination he stated that he did seized the alamot himself and he did not arrest the accused and he did not go to the place of occurrence and he stated that the case has been filed after one months of the date of occurrence . He did not ask to the accused. He did not say the date of occurrence as 26.2.2007 and he also stated that the accused has legal license holder and he denied the suggestion that the accused hold the foreign currency due to legal license.  He denied the suggestion of the accused.

D.W. 1 Md. Abu Bakar Siddique, the Assistant General Manager of Sonali Bank and he also the Assistant General of Manager of  Darga Ghat Branch , Sylhet  May 2003 to 15.4.2007. while he was performed that Branch he knows the.  Accused Kawser Jahan is the proprietor of the Jahan Money Exchange. He stated that he sold 75,135 of British Pound to the Sonaly Bank on 19.2.2007 subsequently he scrutiny   and found 2350 Pounds as torned as defective that is why Bank refunded the said pound to the accused on 26.2.2007 and he adjusted the equivalent of the Bangladeshi Taka from the account of Kawser Jahan  and the accused Kawser Jahan is a legally businessman and he deposited the foreign currency with the Bank.

In his cross examination he stated that on oral permission of the higher authority he came to depose and he also stated that Sonali Bank is controlled by Bangladesh Bank. He did not say how the accused account 75135 Pound acquired. He also stated that the duty of the Bangladesh Bank to see and on the same date 1,03,673 U.S Dollars hold the Sonali  Bank and how the dollars obtained accused he did not know and also stated that the Money Exchange received dollars torn notes. He denied the suggestion of the prosecution case that he came to depose at the instance of the accused.     

D.W. 2 Golam Mostafa , he stated that he was service of Sonali Bank at  Ambar Khan Darga Gate Branch from 1.6.2006 to March 2007. He knows the accused Kawser Jahan and stated that he is the proprietor of Jahan Money exchange. He further stated that on 19.2.2007 he deposited in his account 75,135 British Pound. He further stated that currency of 2350 Pound as defective that is why said note were refunded to accused on 26.2.2007 and same has been adjusted equivalent Bangladeshi taka from the account of the accused.

In cross examination he stated that he took permission from the higher authority and he did not say about collection of 75,135 pound where from by the accused he could not identifiu the defective note. He denied the suggestion that about the assist the accused illegally.

D.W. 3 Md. Rafiqul Hoque , stated that he was a director of Ardi Money Exchange . He stated that the accused is the proprietor of Jahan Money Exchange. The accused and his firm in the same building. The accused runs business with reputation for long time.  He also stated that the accused issick since long time and also stated that Debashis Chakrabarti used maintained register. He was leave before 4 and 5 days   from the date on 26.2.2007. He was in the market of the date of occurrence. He did not maintain register due to absence of manager and the accused maintained the account in separate sheet which the Joint Force Agency did not accept but the accused show it.

In his cross examination he has stated that there is no transaction with the accused. He denied the suggestion of the manager on leave.

D.W. 4 Md. Kamruzzaman , he stated that in chief that Kawser Jahan is his elder  brother and he is sick for 7 -8 years and took treatment from England and from different places and he also stated that Jahan Money Exchange are running were  business for 10 years with name on fame .  He did not written the ledger book. The manager on leave for 15 days that is why ledger book and account was maintained in separate sheet which was shown to the combined force agencies and there was no descriptency in their account and the foreign currency which has been seized can be hold under the license. On holding Bangladeshi taka has been used by the capital of the business which was withdrawn for   firm from his own account. Seized 2350 as defective notes which was returned from the Sonali Bank by adjusted the equivalent taka from the account of the accused and it was further stated that his brother run his business in pursuance of the legal license and by paying tax and it was also stated that the account has been deposited to the Bangladesh Bank up to the month of January and the statement of account will be submitted within 7th date of the next month for the months of February, 2007.

In cross examination he stated that he was not entangle with the business of elder brother and denied the suggestion of the manager is to maintain all the function. He denied the suggestion of the prosecution.

We have considered the P.Ws and D.Ws along other material or records and in order to properly appreciate the submission of the learned advocates it is advisable to set out herein below section 19A and 23 of the Foreign Exchange Regulation Act 1947 which reads as under:
 
         19A. (1) The Government of Bangladesh Bank may, at any time cause an inspection to be made by one or more of its officers, of the books of accounts and other documents of any person firm or business organization or concern required to submit to the Bangladesh Bank any return, statement or information under this act and, where necessary , direct all such books of accounts and  other documents to be seized.
         (2) Every such person, firm, business organization and concern shall produce books of accounts and other documents and furnish such statements and information to such officer or officers in connection with the inspection under Sub- section (1)
         (3) Failure to produce any books of accounts or other documents or to furnish any statement or information required under Sub- section (2) shall be deemed to be contravention of the provisions of this Act.
         23. (1) Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this  Act or of any rules, direction or order made thereunder shall not withstanding anything contained in the Code of Criminal Procedure , 1898 be tried by a Tribunal constituted by section 23 A and shall be punishable with imprisonment for a  term which may extend to two years or with fine or  with both and any such Tribunal trying any such contravention may, if it thinks fit and in addition to any sentence which it may impose for such contravention , direct that any currency, security , gold or silver or goods or other property in respect of which the contravention has taken place shall be confiscated,
         (2)  Notwithstanding anything contained in the Code of Criminal Procedure, 1898 , any offence punishable under this section shall be cognizable for such period as the Government may from time to time, by notification in the official Gazette declare,
         (3) A Tribunal shall not take cognizance of any offence punishable under this section and not declared  by the Government under the proceeding Sub- section to be cognizable for the time being or of an offence punishable under section 54 of the Income -tax Act, 1992 (IX of 1922) an applied by section 19 , except upon complaint in writing made by a person authorized by the Government or the Bangladesh Bank in this behalf.
         Provided that where any such offences is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of any act without permission and is not declared by the Bangladesh Government under the preceding Sub- Section to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission. 
         (4) Where the person guilty of an offence under this Act is a company or other body corporate every Director Manager, Secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offence and liable to the same punishment.

It appears from the above sections the government or the Bangladesh Bank has the power of inspection of the petitioner firm and thereafter the authority of Bangladesh Bank would to direct the appellant to produce the relevant papers and documents before the authority concern but in the particular case no such specific direction is available in the record and we also carefully read the section 23(1) of the said Act and it is apparently   shows that for commission of such offence of the said act, a complaint thereof can only be filed by a person authorized by the government or by the Bangladesh Bank. Further no such complaint can be filed unless the person accused of such offence has been given on opportunity to show cause that he had permission to do the act directed to submit account which in the absence of permission did not obey the direction in respect of submission of account properly would be a punishable offence under the act. The word complaint as appearing as sub- section -3 of Section 23 is not define in the said act.  In the absence of such definition in the foreign exchange regulation Act. The word complain should be taken to mean the complain defined under section 4 (1)(h) of the Code of Criminal Procedure. Section 4(1)(h) reads as under “ 4(1)(h) complaint” . Complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Court that some person  whether known or unknown has committed an offence but it does not include  the report  of police officer.

The legal position as deducted from the above discussion that incourse of any contravention of any provision of foreign exchange regulation act etc.  Complained should be filed before the Magistrate by the person authorized in this behalf either by the government or by the Bangladesh Bank and not by lodging any F.I.R by any unauthorized police officer   and this apart, lodgment of such complain should be followed by an opportunity given to the accused person to show whether he had maintained his account properly or not.

But in the present case the F.I.R was lodged by the S.I. of police after about one month from the date  of his arrest and that was too without any authority which was required under section 23(3) of the foreign exchange regulation act 1947. Even the Charge sheet that has been filed in the present case can not be treated as complaint in as much as the said charge sheet being a police report can not be regarded as a complaint within the meaning of section 4(1)(h) of the Code of Criminal Procedure that is the complain  given under the section excluded the report of a  police officer.

It appears from the F.I.R as well as the P.W.1 the appellant has been arrested on the date of occurrence on 26.2.2007 without showing in connection of the case. For commission of the offence for dissimilarity of the accounts by seizing the currency and accounts books without giving him any opportunity to produce the same and then the F.I.R has been lodged on 26.3.2007 by getting permission from Bangladesh Bank on 25.3.2007 .

So, the lodgment of the F.I.R by the sub inspector of police Md. Mizanur Rahman ,submission of charge  sheet dated 1.6.2007 by S.I. Mohammad Shahid Uddin and cognizance taken by the tribunal and therefore framing of charge by the said tribunal against the appellant in the present case be contrary to and in violation of requirements of section 23(2) and (3) of the Foreign Exchange Regulation Act, 1947. are bad in law.

From the scheme of the Foreign Exchange Regulation Act, 1947 can be said that the legislature wanted that any person accused of any offence for contravention of the provisions of the Foreign Exchange Regulation Act, etcetna should not be subjected to unnecessary harassment by the police and accordingly safe guard are provided in the act. But in the present case the police officer along with the combined force has in contravention of the safe guard provided in section 23 of the Foreign Exchange Regulation Act, 1947 initiated the present criminal case against the appellant by lodging the F.I.R treating the alleged offence under the said act. Neither getting any letter of authority nor it has been lodged by the Bangladesh Bank. Though a permission has been given by the Bangladesh Bank about one month later from the date of occurrence  as well as arrest of the appellant and on consideration  the evidence  of P.W. 18 who issued letter  of permission  ext. 7 after 1 month without  any reasons  thus a suggestion was given from the defence as mechanical  permission  so the FIR. itself is a malafide one  under the facts and circumstances of the case.

Under the above facts and circumstances, of the present case, the lodgment of the F.I.R can not be construed to have accorded the requisite authority to the informant to lodged the present criminal case against the appellant under the Foreign Exchange Regulation. So the initiation of the present case have not been validly initiated in terms of the requirements of Section 23 of the Foreign Exchange Regulation Act.

Moreover , it is admitted facts that the appellant is a bonafide business man and he is the proprietor of Jahan’s Money Exchange  which is also admitted by the P.W-11 A.K.M Fazlul Hoque, Assistant Director of Bangladesh Bank, Sylhet, in his evidence and he has also admitted that the appellant got the license on 19.10.1998 and he used to run his business regularly since then and  the said license was valid up to 18.10.2007 and the said money exchange enlisted to hold $ 25,000 dollars and we have also perused  the examination of the appellant under section 342 of the Code of Criminal Procedure along with the papers and documents submitted by the appellant including his license where and account has been shown in respect of  US dollars 4755 by endorsing the photocopy of passport of different passengers an also accounts of $ 5476.85 from 12.02.2007 to 26.2.2007 along with the endorsement certificate and relevant photocopy of passport . We also considered the statement of D.W. 1 Md. Abu Bakkar Siddiqaue, Assistant Managing Director, Sonali Bank, Sonamgonj while he was performed as Assistant General Manager, Sonali Bank Darga Gate Branch, Sylhet on 19.2.2007 the appellant sold out 75135 pound and subsequently on scrutiny 2350 pound was found as torned and defective and that is why it was refunded to the appellant which is corroborated by D.W. 2 and it is also in the materials on record that the Bangladeshi taka which were seized from of the appellant the amount were drawn and deposited as business capital for foreign currency and it is for running his bonabide business and which does not constituted any offence of the said act. We find defense plea more probably then that of prosecution story and under above facts and circumstances and materials on record we find substances in the submission of the learned advocate for the appellant and therefore the appeal is succeeded.

The appeal is allowed, the impugned judgment and order dated 08..08.2007 passed by the Judge, Foreign Exchange Regulations Tribunal and Additional Sessions Judge , 1st Court, Sylhet in Foreign Exchange Regulation  Case No. 3 of 2007  is hereby set-aside and we directed the respondent to release the confiscated US $ 4745, & Pounds 5476.85 Pounds and Tk. 27,80,222 at once in favour of the appellant and the appellant is also released from the surety of his bail bond.

Ed.