1. The appellant Sadaruddin son of Badaruddin was charged under section 230 (7) (a) of the Companies Ordinance, 1984, and tried before the learned Sessions Judge, Karachi, (South) who has convicted and sentenced him to imprisonment till rising of Court and to pay fine of Rs.10,000 for the first default, and Rs.5,000 for the subsequent defaults if the fine is not paid, the same shall be recovered in accordance with the provisions of Companies Ordinance, 1984, vide judgment dated 6-12-1989.
2. The brief facts giving rise to the present appeal are that the appellant is a Chief Executive of Messrs Sovenier Tobacco Company Limited having its registered office at E-31, S.I.T.E., Karachi. That the company of the appellant closes its Annual Accounts on 31st December, each year, and the appellant was required to submit half-yearly profit and loss accounts and the balance-sheet for the half-year ending on 30th June on or before 31st August, as envisaged by section 245 (3) of the Companies Ordinance, 1984. That the appellant failed to submit half-yearly profit and loss accounts and the balance-sheet for the half-year ending on 30th June, 1987, by 31-8-1987, and as such, a complaint was filed against the appellant under section 230(7) of the said Ordinance. On receipt of the above complaint, learned Sessions Judge was pleased to issue process against the appellant.
3. A formal charge was framed against the appellant to which he pleaded not guilty. At the trial complainant examined Ataullah Khan Deputy Registrar, Companies, who produced the complaint as Exh.4, letters dated 18-6-1987 and 30-6-1987 as Exh.5 and Exh.6 respectively.
4. After close of the prosecution case the statement of the appellant was recorded under section 340 Cr.P.C. In which he denied the allegations and pleaded innocence. It was further stated that he was not able to submit the accounts due to the circumstances, which were beyond his control. He also examined himself on oath as envisaged by section 340 (2) Cr.P.C. And has also produced documents as Exh.10 to Exh.l9.
5. The learned Sessions Judge after taking into consideration the evidence produced by the prosecution and the appellant, has convicted the appellant as described above, and the present appeal is directed against the above judgment of conviction.
6. I have heard Mr. Ibrar Hussain, learned counsel appearing for the appellant, Mr. S.M. Amir Naqvi, learned counsel appearing for the complainant, Mr. Salman Ansari, learned counsel appearing for the State and have gone through the record.
7. It was contended by Mr. Ibrar Hussain, learned counsel appearing for the appellant that t1he prosecution of the appellant was mala fide inasmuch as he was not prosecuted for not producing yearly accounts but he was prosecuted only in respect of failure to produce half-yearly accounts. It was further contended that three Directors of the company were from Financial Institutions PICIC, NIT and Banker Equity and it takes about six months for the company to finalise the accounts, to call Annual General Meeting and to declare dividends and, therefore, the finalisation of accounts was delayed and such a request was made in June, 1987 to the Corporate Law Authority for extension of time. That some time was also wasted in correspondence with the Corporate Law Authority and, therefore, the delay in compliance was not wilful. Lie has further contended that looking to the above circumstances, the sentence passed by the learned Sessions Judge was harsh and excessive and the same may be reduced.
8. Mr. S.M. Amir Naqvi. Learned counsel appearing for the complainant has contended that the reasons for delay were not convincing and the appellant was rightly convicted. However, Mr. Salman Ansari, has contended that looking, to the circumstances of the case and the correspondence which went on between complainant and appellant, the subsequent fine for second default mad be reduced to some extent.
9. I have considered the contentions of the learned counsel and have gone through the R & P of the case. There is no dispute that the appellant had failed to produce half-yearly accounts within stipulated period. Mr. Ataullah Khan P.W.1 has admitted in cross-examination that their Islamabad office had replied to the accused company by its letter dated 18-6-1987 whereby the letter dated 10-6-1987 wrote by the company was rejected. He did not know if the company had intimated their Islamabad Office that during the year 1987, Karachi was under the pressure of riots etc. And the father of the accused was seriously ill and, therefore, the accounts could not be prepared in time.
10. The correspondence produced by the accused/appellant through the complainant does show that they had asked for further time to produce the accounts but their request was refused. Be that as it may, the facts do indicate that non-production of the accounts in time was due to unavoidable circumstances and, therefore, while maintaining the conviction and sentence of the appellant on the first count of default, the fine on second count of default is reduced from Rs.5,000 to Rs.2,000.
11. With the above modification, the appeal is dismissed. The fine,, to be deposited within seven days.
12. I had decided the above appeal on 8-11-1990 by a short order and these are the reasons for the same.