ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of the following Criminal Appeals:-
(1) Criminal Appeal No,1092 of 2001 (relating to reference No,10 of 2000).
(2) Criminal Appeal No,1075 of 2002 (relating to reference No,17 of 2000).
(3) Criminal Appeal No,29 of 2002 (relating to reference No,18 of 2000).
2. These appeals are being taken up together because the appellant Muhammad Asif Saigol in these appeals is the same and these also involve common questions of law and facts. Beside, these references pertained to a family business involving him and his two brothers who are sponsors of the companies besides being the elected Directors.
3. Reference No,17 pertains to Allied Bank Ltd. Which was filed against Muhammad Asif Saigol because he was the Chief Executive/Guarantor of Mohib Fabric Industries Ltd. And following was the indictment against him:-- "You are the Chief Executive and the person who was incharge, exercising direction and control of the affairs of the company known as Mohib Fabric Industries Ltd. The Company, through you in the year 1992, requested Allied Bank Ltd. (ABL) for various finance facilities which totalled an amount of Rs,46.5 million. These financial facilities were so provided to the Company and the terms and conditions of the same were reduced into writing through four Finance Agreements each dated 13- 12-1992. Repayments/discharge of these facilities were personally guaranteed by you vide Personal Guarantee dated 13-12-1992 along with other Directors of the Company. These finance facilities were later on renewed firstly in the year 1992 and then in 1996 and each time repayments/discharge was personally guaranteed by you and others. However, even after the second renewal in 1996, the Company failed to liquidate its obligations in repayment of said Finance Facilities provided to the Company and at that stage total liability was Rs,49.249 million.
You acting as Chief Executive of the Company again through your letters dated 13-8-1997 and dated 1-9-1998 requested for rescheduling of the total defaulted amount of Rs,50.624 million. The requests for re-scheduling were again accepted by the ABL on 13-12-1998. However, the Company again failed to make the payment in accordance with the re-schedulement arrangements and defaulted in payment of the out standings of Rs,55.993 million which were payable under the arrangement in 84 monthly installments commencing from 1-1-1998 @ Rs,0.850 million per month.
However, only an amount of Rs,1.730 million has been returned till date and remaining liability still stands. You being a Director, Chief Executive, a Guarantor, the Person Incharge exercising directions and control of the affairs of the said Company, have thereby committed offences of corruption and corrupt practices as defined under section 9(a)(viii), punishable under section 10 read with Item No,1(a) of Schedle-A of National Accountability Ordinance, 1999 which is within the cognizance of this Court."
4. Muhammad Khalid !Shag (P.W.1) the Custodian of the Record of Allied Bank Ltd. Produced a large number of documents establishing the liability against the company. His statement can always be referred to for details. He was not cross-examined by the appellant's side.
5. Farrukh Faheem Ansari (P.W.2) is the Manager of Foreign Exchange, Allied Bank Ltd., Lahore. He is the signatory to the agreement. For the loan and the mark-up (Exh.PW-1/1-4), which documents also contain the signatures of the appellant and his two brothers Abid Saigol and Aril Saigol. He was not cross-examined.
6. Syed Mazhar Imam Zaidi (P.W.3) is the Regional Controller, Allied Bank Ltd., Sialkot. The Bank had entered into an agreement with Mohib Fabrics through him and the documents Exh.PW-I / i-4 were executed through him. He signed it as a representative of the Bank. He also is a witness of the signatures of the appellant and his two aforementioned brothers who had signed the same besides Farrukh Faheem Ansari (P.W.2). Likewise he is an attesting witness of the agreement (Exh.PW-3/3-4) and he witnessed the signatures of the appellant and his two aforementioned brothers. In his cross-examination, he said:- "There was no illegality in the said transaction between the bank and the industries.The documents in respect of the same were complete. I knew Mohib Groups. The Mohib Fabrics, Mohib Textile, and Mohib Exports were included in this Group. 1 do not remember that how much payment was made by Mohib Fabrics and Industries."
7. Iftikhar-ul-Haq (P.W.4) is also a Manager of the Allied Bank Ltd. He provided the details of financial renewals and spoke about the noncompliance of the agreements at the end of the appellant and his company by stating:-- "The bank had extended near about 40(M) financing to the said industries. The first renewal of financing was made in the year 1994-95 and the second renewal was made in the year 1995-96.
The first rescheduling was done in the year 1996-97 and the second was made in the year 1997-98.
The industries did not comply with the terms of the rescheduling. They had made payment of Rs,15/17 lacs (approx.) as per the rescheduling arrangement. The bank had filed the recovery suit against the said industries in the Hon'ble High Court. We had also provided information to the NAB in respect of the same and thereon action was initiated against them. They did not make any payment even thereafter."
8. Some relevant excerpts from his statement in cross-examination are re-produced below:-- "It is correct that the said industries had done export business worth Rs,44.310 (M) through our bank.
I do not know, if the said agreement was a sale purchase agreement. I cannot affirm or deny that if these agreements were of sale purchase basis."
"We had tiled complaint to the NAB against the accused either in November or December, 1999. The bank had issued default notice to the directors of the industries. I cannot say, if the said notice is on the file of the reference or not."
"The recovery suit in the Hon'ble High Court is still pending. The complainant to the NAB was made against the accused on the direction of Mr. Rasheed Chaudhry, the then President of the Bank. He had authorized us in writing to file that complaint."
"It is correct that some machinery of the industries is lying with the bank. It is correct that the accused had offered to the bank to sell the machinery of the industries lying in the bounded warehouse."
"I know that said industry was known as Mohib Group. It included Mohib Textile, Mohib Fabrics and Mohib Exports. It is incorrect to suggest that accused had made repayment of the loan. It is incorrect to suggest that accused was not wilful defaulter and it was due to trouble occurred with them in the business."
9. Rasheed Ahmad Chaudhry (P.W.5) was the President of the Allied Bank at the relevant time. He deposed:-- "The industries had not repaid the loan finances to them as per their commitment or schedule. We had been approaching them for adjustment but in return they requested for the renewal of the same facility. The same was done by the bank. The industries even, thereafter did not come up to their commitment as regards the repayment of the loan. It was rescheduled and renewed time and again. The last rescheduling was done in the year, 1996. The industries even did not comply with the terms and conditions of that rescheduling and the same resulted into the struck up of total liability. The total liability of the industries tentatively amounted to Rs,60 millions. It comprised of the principal amount and the markup.
10. Some relevant excerpts from his statement in cross-examination are re-produced below:-- "We had issued notice to the industries for repayment of loan before institution of complaint against them. I do not remember that if I had produced before the Investigating Officer, the copy of the said notice. It is incorrect to suggest that we had not issued notice to the industries for repayment of loan before institution of complaint. It is correct that the loan was secured against the second mortgage and hypothecation of stock and import documents. The industries had not been paying the loan regularly up to the year, 1996. The total, net repayment so far is of Rs,1.7 million up to the year, 2000. It is correct that American Express had got attached the property of Mohib Textile Mills belonging to the accused. I cannot say that if the other majority of the creditors of the accused's industries had brought their claim of repayment of financial facilities after the attachment of the property of the accused's said mill on the initiation of American Express. The Mohib Textile Industries had been functioning up to the year, 1999."
"The meetings had been taking place of all the banks during my tenure in office. We had been discussing the problems of the defaulter in those meetings. The problems of the Mohib Textile Mills used to be discussed in those meetings. Volunteered, the foreign banks were not members of that revival of sick units committee. The complaint by me was probably tiled on 13-12-1999. There were about thirty defaulters of big amounts of the bank. I had filed complaint against other defaulters in the NAB."
"The accused's industries did not request for post-shipment finance on the basis of export document, so we had not extended that facility after 1996. It is incorrect to suggest that we had stopped the post-shipment finance facility of the above said industries after the action by American Express. It is incorrect to suggest that the accused's industries did not make us the payment of the loan after closure by us of the post-shipment finance facility."
"It is incorrect to suggest that it was a case of simple default and not of willful default."
11. Muhammad Akram Ali Shad, Assistant Director, F.I.A. (P.W.6) is the Investigating Officer in this case. Some relevant excerpts from his cross-examination are re-produced below:-- "I found the accused Muhammad Asif Sehgal as willful defaulter in the investigation."
"The concerned bank had not shown me any notice given to the accused for repayment of loan during my investigation. I also did not take any such notice from the bank. I had read all the documents taken into possession by me in the investigation. I do not remember now those documents exactly."
"I have not recorded the version of the accused Muhammad Asif Sehgal in my investigation.I also did not join him in the investigation. It is correct that I had prepared my report according to the documents and the statements given to me by the bank officials'
"I am in the service of F.I.A. For the last 13 years. I had one lot of investigations during my service career so far. I did not find out the reason for default in payment by the accused. It is incorrect to suggest that the parent industry of the accused's Group namely Mohib Textiles went under liquidation and so the default in payment by accused took place. I do not know, if concerned banks had lodged litigation against Mohib Textiles and that's why it went under liquidation. It is incorrect to suggest that under the pressure of the NAB I had prepared report against the accused and the accused was not a willful defaulter."
12 In his statement under section 342 Cr.P.C. The appellant Muhammad Asif Saigol admitted the factum of the agreement but gave the following explanations:- "The industries had availed facility from the bank in a very normal fashion till 1996. All of a sudden after August, 1996, the bank froze operation of account and facilities for no good reason. The cause of freeze by the bank was relating to the ex-party action by American Express Bank against Mohib Textile Mills Ltd. And affiliated concern. The company made various approaches in writing to the bank enabling normalization of the companies operations which was disrupted unilaterally by the bank. The company made viable and normal working arrangement/proposals to the bank which were not accepted and the bank sought a unilaterally proposed arrangement which was not workable as it lacked important elements such as post-shipment finances. The same prevented the company from operating the account."
"In fact the company's repayments to the bank during the period 1992 up-till 1996 exceeded the principal amount borrowed by almost 35 to 45%. The bank did not apply the repayment proceeds in accordance with the financing agreements and charged mark-up on mark-up and resorted to adjustment of repayments towards purely mark-up which was and is contrary to the State Bank of Pakistan regulations and the financing agreements."
"It is incorrect that the company owed such a huge amount to the bank or it refused to pay. In fact the bank made unilateral tall claims against the company which clearly contradicts the statement of account in respect of the liabilities, principal amount borrowed, mark-up and repayments made.
The company insisted that the bank should settle the matter of liability amount, if any due and the repayment of any balance liability was proposed by way of export of fabrics. The bank refused to accede to their request and unilaterally issued various letters stating liability and repayments proposals. The claim of the bank is not legal."
"No notice of default in terms of the NAB Ordinance was issued to me and no reconciliation of liability amount has ever been done. The offence of willful default was not an offence on 17th of November, 1999 at the time of my arrest. It was only on 3rd of February, 2000 when the offence of willful default was incorporated in the NAB Ordinance."
13. In this reference, Mr. Abdul Ghaffar Khan, learned Judge of the Accountability Court No,2, Lahore, vide his judgment dated 17-6-2002, held the appellant Muhammad Asif Saigol guilty for the offences under sections 9 and 10 read with Item No,(1)(a) of Schedule of NAB Ordinance and sentenced him to 14 years' R.I. With fine of Rs,60 million.
14. -Reference No,18 pertains to the Askari Commercial Bank. Muhammad Asif Saigol appellant was indicted in this case pertaining to Mohib Exports Ltd. On the following grounds:- "You are the Chief Executive and also the person who was incharge,exercising direction and control of the affairs of the company known as Messrs Mohib Exports Ltd. The company, through you in 1993 procured finance facilities from Askari Commercial Bank Ltd. (ACBL) against the Packing Credit-I (FAPC-I) through financing agreement dated 25-1-1993. The limit was subsequently enhanced by the Bank at your request upon the terms and conditions which were later on reduced in writing and in this regard various agreements were entered into between the parties dated 30- 10-1995 along with separate documents executed for securities/guarantees.
Repayments/discharge of these facilities were personally guaranteed by you vide Personal Guarantees dated 25-10-1993 and 30-10-1995. These finance facilities were renewed by the Bank from time to time at Company's own requests. The company, however, failed to abide by the terms and conditions of the agreements and failed in repayment of the dues to the bank. In 1997, once again at Company's request, a terms finance facility (a, 14% mark-up was allowed by the Bank and the company have also entered into a finance agreement dated 18-8-1998 with the Bank under which the Company agreed to repay a sum of Rs,21.565 million on or before 28-2-1999. However, despite assurance the Company failed to abide by the same and willfully defaulted in payment of an amount of Rs,16,526,723 on account of the finance facilities provided to the Company, of which you are a Director, Chief Executive, a guarantor, the person incharge exercising directions and control of the affairs of the said Company, thereby committed offence of correction and corrupt practices as defined under section 9(a)(viii), punishable under section 10 read with Item No,1(a) of Schedule-A of National Accountability Ordinance, 1999 which is within the cognizance of this Court."
15. Khurram Dania] (P.W.1) being the Custodian of the Record had brought the record with himself before the trial Court.
16. Faisal-ur-Rehman (P.W.2) is the AVP of Askari Bank. Some relevant portions from his testimony are re-produced below:- "The company applied for loan facility by means of an application Exh.PA. The company opened its account. The account opening form is Exh.PB. It bears the signatures of Arif Sehgal as Exh.PB/1, of Abid Sehgal as Exh.PB/2 and of Asif Sehgal as Exh.PB/3. I recognize their signatures."
"The company finally applied for 10(M) facility of FAPC (Finance Accounts Packing Credit). Finance Agreement Exh. PN dated 25-1-1993 signed by Muhammad Abid Sehgal and Arif Sehgal."
"In December, 1993 the company asked for enhancement of loan facility from 10(M) to 25(M), through letter dated 13-12-1993. Exh.PU is signed by Muhammad Arif Sehgal. This request was granted by the bank and the facility was enhanced to 25(M)."
"In the year 1995 the company asked for renewal of the facility and through a resolution of the company dated 20-12-1995. The copy of which is Ex.PDD signed by Muhammad Abid Sehgal whose signatures are recognized. The company executed Finance Agreement Exh.PEE dated 30-10-1995.
This document is executed by Muhammad Arif Sehgal on behalf of the company."
"The company failed to adjust the liability, therefore, the loan was restructured on their request."
"Exh.PMM is Agreement for Finance. Arif Sehgal was executed by Abid Sehgal and Asif Sehgal.
Exh.PMM/1 and Exh.PMM/2 are signatures respectively. My signatures are Exh.PMM/3. Arif Sehgal executed promissory note Ex.PNN. It also bears my signatures Exh.PNN/1. Letter of continuity executed by Arif Sehgal is Exh.POO. It was also signed by me Exh.POO/1. Arif Sehgal signed Directors/shareholders guarantee Exh.PPP. I also affixed my signatures which are Exh.PPP/1."
"The company was required to adjust loan facility in February, 1999. But it failed to do so. The statements of accounts from 1-7-1998 to 16-11-2000 is Exh.PQQ/1-5. At present the company is liable to pay 16.889 (M) till today." Arid the following excerpts from his cross examination are relevant to be reproduced:- "Thereafter I appeared before the F.I.A. Several times and produced documents relating to his case."
"My statement was not recorded by the Investigating Officer I might have gone to the office of the F.I.A. 4/5 times to present the documents as a witness. I used to be questioned by the Officer of the F.I.A. And he maintained a case diary."
"I have brought the statement of accounts of Mohib Fabrics as well today. The total liability of Mohib Fabrics stands adjusted."
"I am not in a position to confirm or contradict that the Mohib. Exports since availing the facility in question made export of Rs,680 million (approx.). It is incorrect an impossible that the bank has illegally kept to itself Rs,35 million being difference of the negotiating rate and realized amount from the State Bank of Pakistan. The entire amount released from the State Bank of Pakistan is adjusted in the parties account. The accused has adjusted the entire liability of Mohib Fabrics Limited, it is around ,Rs,5,50,000. But no deposit has been made on the account of Mohib Exports Ltd. Volunteered, Mohib Textile has adjusted his entire liability. It is correct that Exh.PKK contained a request for approval of the proposal mentioned therein, we were not bound to accept these proposals. We thereafter entered into agreement with the party and no mark-up was recovered after the agreement. The record produced before this Court does not contain the brake up of the mark-up of all the three accounts, however, it contains consolidated mark-up figure."
17. Rashid Ehsan Mian (P.W.3) was the Senior Vice President of the Askari Commercial Bank at the relevant time. A relevant excerpt from his examination-in-chief is reproduced below:-- "At that time the outstanding liability was about Rs,25(M) Mohib Textile agreed to adjust the liability by February, 1999. Mohib Textile honoured its obligation partly. However, at the time of the institution of the complainant the liability of Mohib Textile was less than Rs,17(M). Mr. Abid Sehgal, Mr. Asif Sehgal and Mr. Arif Sehgal were the directors of the same. I was not the Chief Manager at that time of the branch when the documents on behalf of Mohib Textile were executed. After the promulgation of the NAB Ordinance we considered it necessary to make a complaint to the NAB.
The complaint Exh.PW-3/A hears my signatures."
18. Muhammad Akram Shad (P.W.4) is the Investigating Officer. Who submitted his report, on the basis of which the reference was made. In his cross-examination he had to make the following statement:-- "The investigation was entrusted to me on 12-1-2000. My report is dated 8-2-2000. I did not ascertain how much amount, the accused has to repay. I cannot deny the suggestion that the accused had made payment to the bank to the tune of Rs,53(M). I also cannot deny the suggestion that the bank has calculated the amount of interest against the agreement. It is incorrect to suggest that I have partially investigated this case with dishonest intention."
19. The appellant Muhammad Asif Saigol in his statement under section 342, Cr.P.C. Tried to justify the default and tried to bring his case as one of default simplicitor and not willful. He went on to say:- "The facilities availed by the Mohib Exports Ltd. Were secured inter alia by mortgage, hypothecation agreement and second pari-passu charge on the company's assets were got registered with the company Registrar as per legal requirement of the agreement and in order to secure the interest of the Askari Commercial Bank. The charge on the above said assets are still valid."
"That the Company being desirous of settling its liabilities strived for setting its liabilities and this fact stand established from the admission of P.W.1 in his cross-examination, wherein it is recorded 'The total liability of Mohib Fabrics stand adjusted'. This very fact demonstrate that the Mohib Exports Ltd. Had always been serious in settling its liabilities and it is established on record that the Company was making payments to the Bank as late as 30-11-1999 even when I was lodged in jail.
However, it is submitted that the amounts deposited by the company is its account were adjusted by the bank at its own sweet will in mark-up accounts contrary to the instructions issued by the company earlier."
"That FAPC facility to the tune of Rs,25(M) was allowed to Mohib Export and the facility was allowed under the policy of the State Bank of Pakistan under Export Refinance Scheme, the object of the scheme was to boost the export of Pakistan. This Finance facility is availed in response to either a contract or Letter of Credit (LC) and this facility is always availed against a firm order or Letter of Credit as per instructions issued by the State Bank of Pakistan. The Mohib Exports Ltd. Since availing the facility have made export of Rs,680(M) (approx.) and the difference of Rs,35(M) have illegally been kept by. The Bank to itself being difference of the negotiating rate and realized amount from the State Bank of Pakistan. The company being desirous of settling its liabilities strive for settling its liabilities and this fact stand established from the admission of P.W.1 in his cross-examination, wherein it is recorded 'The total liability of Mohib Fabrics stand adjusted'. This very fact demonstrate that the Mohib Exports Ltd. Had always been serious in settling its liabilities and its is established on record that the company was making payments to the Bank as late as till 30-11-1999. The project is operational and the balance liability if any against the Company is sufficiently secured by way of mortgage, hypothecation and charge on assets of the Company. The agreement Exh.PLI., executed with earnest honesty for retiring the outstanding facility and it is admitted by P.W.1 that the Exh.PKK was duly registered in the Bank record but the Bank did not respond to the letter dated June 18, 1997 which clearly stipulate that 'First the principal of Mohib Fabrics Industries, then principal of Mohib Exports and the mark-up in the last would be adjusted'. These instructions were completely flouted and Principal along with mark-up of Mohib Fabrics Industries were adjusted which was totally against the instructions and thereafter, illegally and unlawfully and untrue claim is being established/lodged against Mohib Exports Ltd. Despite the fact that the Company had so far made payments of Rs,53.223 (M) against the facilities respectively availed by the Mohib Exports Ltd. The account statement relied upon by the Bank does not reflect true state of affairs and the record produced before the court does not even contain the breakup of the mark-up of all the three accounts maintained with the Bank."
"Despite the fact that the Company has so far made payments of Rs,53.223 (M) against the facilities respectively availed by the Mohib Exports Ltd. The liability claimed at Rs,16.889 (M) by the Bank is untrue. It is admitted by P.W.1 in his statement that the Exh.PKK was duly registered in the bank record but the Bank did not respond to the letter dated June 18, 1997 which clearly stipulate that 'First the principal of Mohib Fabrics Industries, then principal of Mohib Exports and the mark-up in the last would be adjusted'. The instructions were completely touted and the Bank even after 18-6-1997 adjusted mark-up despite clear and unambiguous instructions to the contrary. Thereafter, illegally and unlawfully and untrue claim is being established/lodged against Mohib Exports Ltd. Despite the fact that the Company has so far made payments of Rs,53.223 (M) against the facilities respectively availed by the Mohib Exports Ltd. The account statement relied upon by the Bank does not reflect true state of affairs and the record produced before the Court does not even contain the break-up of the mark-up of all the three accounts maintained with the bank. Therefore, the alleged claim is not maintainable. The application under section 25-A is pending since long and despite the recommendations of State Bank of Pakistan. The matter of settlement is being delayed maliciously."
"I am innocent. The bank has instituted complaint against me in the year, 1999 even when the crime of willful default was not part of the NAB Ordinance. Thewillful default was introduced only on 3-2-2000. No notice whatsoever for default was ever served by the Bank and it is so admitted by the prosecution witnesses. The bank has already instituted a suit before the Banking Court Lahore for recovery and the same is pending adjudication."
20. In the said reference, the appellant Muhammad Asif Saigol was convicted under section 10 of the NAB Ordinance and punished to imprisonment for a period of 7 years along with a tine of Rs,10(M) which was ordered to be recovered under section 386, Cr.P.C. By way of attachment and sale of movable and immovable property belonging to the appellant. Benefit of section 382-B, Cr.P.C. Was extended to him. This conviction and sentence against the appellant was passed on 4th August, 2001 by Mr.M.A. Shahid Siddiqi, the then learned Judge of the Accountability Court, Lahore.
21. Reference No,10 against Muhammad Asif Saigol is filed on the complaint of the Pakistan Industrial Leasing Corporation (PILCORP),* a financial institution. It was alleged in the complaint that during the years 1992 to 1994, Mohib Textile Mills, of whom Muhammad Asir Saigol was the Chief Executive, was allowed two lease finance facilities of Rs,28,293,724 and Rs,70,00,000 through Accounts No,50851 and 71222. That the terms of the lease were revised/restructured through supplementary lease agreement of 21-11-1994 (Exh.PM). That in the year 1995 appellant failed to pay the rental on time and once more the facilities were rescheduled vide another agreement of 4-12-1995. That despite second rescheduling the appellant started committing default. That the complainant was constrained to file a suit for recovery of Rs,128,243,733. During the pendency of the suit, once more rescheduling at the request of the appellant was done on 1-10-1997 but the appellant continued to commit defaults. That a preliminary decree of Rs,71,932,940 was passed.
Later the National Bank of Pakistan filed a petition for winding up the Mohib Textile Mills which was allowed and subsequently the complaint was made as the liabilities were not being discharged which stood at a sum of Rs,208,737,549.
22. Hassan Saleem Sheikh. Manager of the said Corporation (P.W.1) recorded his testimony before the trial Court and the relevant excerpts from whose examination-in-chief and cross-examination are re-produced below:-- "In the year 1992 Mohib Textile applied for Lease Finance Facility. An application for this purpose was received. I hereby produce the same. I was moved through Asif Sehgal, accused. Lease Finance Facility was allowed by the Board of Directors. Then a formal agreement was arrived at. I being custodian of the record tender nine (9) documents which include Lease Agreement dated 22-11- 1992, Trust Receipt dated 22-11-1992, Sale Agreement dated 22-11-1992, Letter of continuity dated 29-8-1992, Demand Promissory Note dated 22-11-1992, Personal Guarantees dated 22-11-1992, Undertaking, Delivery Receipt and copy of Resolution of the Board of Directors dated 1-1-1992.
Rs,28.29 million were disbursed under this agreement."
"The accused paid only Rs,25,000 during the period from June, 1995 till date. The accused did not respond to the demand set up by our company and we were left with no other option but to file a recovery suit in the Lahore High Court, Lahore. During pendency the accused approached us for resdeduling of debts. Our company once again rescheduled the debts in the year 1997. I hereby produce Lease Agreements No,234/97 and 235/97 dated 1-10-1997 along with Personal Guarantees, Demand Promissory Notes, Letters of Continuities and Trust Receipts for the respective agreements.
The accused did not make repayments in accordance with the rescheduled agreements, therefore, we again started pursuing the civil suit which was filed in the year 1997. The suit was decreed in our favour. I hereby tender the certified copy of the decree-sheet as well as of the order-sheet as Exh.PA. No appeal was filed. At the instance of Chief Executive I made a complaint to the NAB which is Exh.PB, which bears my signatures. I also verified the same. At the time of making of the complaint the accused was liable to pay Rs,208,737,549. I produce the statement of accounts. The learned defence counsel objected to it on the ground that the PILCORP is not a banking company within the meaning of Banking Companies Ordinance, 1992. The objection does not appear to be unfounded. It shall be decided at the time of final decision. The statement is received as Mark-A. I also tender the registered original General Power of Attorney executed in my name by PILCORP as Exh.PC.
"The machinery is already in the possession of the lessee and we make payment thereof to the .Lessee by purchasing the machinery from him and then lease it back to Celeste. After making payment to the lessee we become owner of the machinery. In all cases the title or equipment vests with our company. After payment of the - price of machinery the title stands transferred to the lessee. After full payment of the sale price the lessee approaches us for transfer of the title. We continue to be the owner till transfer of the title. Rental paid quarterly to us by the lessee reflects installments of the principal amount and the profit or mark-up which is for the use of the equipment. Lease financing agreement is distinguishable from hire purchase agreement. In case the lessor does not pay rentals, leasing company can re-possess the lease assets in hire purchase."
23. Ahmad Razi Ghazali (P.W.2), the ex-Executive Vice-President of PILCORP was a witness of the prosecution. A relevant excerpt from his statement recorded before the trial is reproduced below:-- "I served PILCORP from February, 1994 to 20-8-1998. In 1994 I was dealing with everything in my capacity as Vice-President. PILCORP opened LC with Standard Chartered Bank on behalf of Mohib Textile Mill. Mohib Textile Mill was allowed lease finance facility. We entered into agreement with Mohib Textile Mill after the arrival of shipping documents. Exh.PD is the agreement which is authorization to purchase. I executed this document and affixedmy signatures on behalf of PILCORP. Arif and Abid signed on behalf of Mohib Textile Mill. I identify their signatures (subject to objection)."
24. Farooq Sultan, Assistant Manager (P.W.3) is the signatory of the supplementary agreement (Exh.P'.W.) and is also a witness of its signing by the appellant Muhammad Asif Saigol and his two brothers Arif Saigol and Abid Saigol.
25. Muddassar Naqvi (P.W.6) who is the Vice-President of PILCORP, made the following statement:-- "In 1997 I was AVP in Law Division of PILCORP. The liability of Mohib Textile Mill was rescheduled in the year 1997. The agreement No,234 of 1997 was executed. I signed the same. Arif Sehgal and Abid Sehgal formed their liability and put their signatures as guarantors. I affixed my signature as a marginal witness. Exh.PW-2 is my signature. Personal guarantee Exh.PAD was also executed by Muhammad Asif and Abid Sehgal. At the same time Exh.PZ/2 was also executed which I signed as a marginal witness as Exh.PZ/1. The documents were signed in my presence."
26. Javed Siddique, Manager Marketing and Law Monitoring PILCORP (P.W.7) stated:-- "I have been working with PILCORP since June, 1996. In October, 1997 supplemental lease agreement Exh.PAA, trust receipt Exh:PAB were executed by PILCORP and Mohid Textile Mills. I signed Exh.PAA as a marginal witness. My signature is Exh.PAB/1. I also signed trust receipt Exh.PAB as a marginal witness. My signature is Exh.PAB. Both these documents and others documents were executed in my presence."
27. Rasheed Ahmad, the Chief Executive Officer and Managing Director, PILCORP (P.W.9) appeared as a prosecution witness to support the case of the complainant. Some relevant excerpts from his statement are re-produced below:-- "It was our independent decision to reschedule. I cannot say that other Companies/Financial Institutions made rescheduling independently or not. The Leasing companies rescheduled the lease amount within 2/3 months.
"As far as PILCORP is, concerned the Directors and other sponsors did not honour their commitments to pay the installments as perrescheduling arrangements. I do not remember about others.
"Q. Is it correct that the disaster of Mohib Textile Mill started whenAmerican Express got the assets under the orders of the Court and followed by the closure of the Mill?"
"A. I am not sure because there were a number of banks and financial institutions as lenders of Mohib Textile and it was a matter between Mohib Textile and its lenders. It is correct that liquidation proceedings are pending before the Court of Companies Judge of the Lahore High Court, Lahore against Mohib Textile Mill. PILCORP is a party to those proceedings."
"I had gone through the complaint made to the NAB on behalf of PILCORP. We were approached by PICIC to initiate complaint against Mohib because they also have default of huge amount in their books against Mohib Textile Mills Ltd. And we have been discussing among ourselves."
28. Anwar Rashid, the Executive Secretary Leasing Association Pakistan (C.W.1) had the following statement to make:-- "I have brought the record of the minutes of the meeting of the Executive Committee of Pakistan Leasing Association held during the year 1996-97. There is no mention of the default committed by Mohib Textile Mill in the minutes of the meeting recorded by the Secretary."
29. Akram Ali Shad,. Assistant Director F.1.A. (P.W.10) is the Investigating Officer even in this case, whose cross-examination is relevant for our purposes particularly the following excerpts:- "I have obtained Master Degree in Political Science besides doing LL.B. I joined F.I.A. In July, 1989 on ad hoc basis. I did not appear any competitive examination for this job. I have done several courses but not anyone of them was relating to white collar crime investigation. I have never done accountancy nor I know anything about it. I understand the difference between the loan and the lease finance."
"It is a case of leasing and that no loan was advanced to the accused. I received instructions to investigate this case in writing. I produce a photocopy of the letter Exh.PW-10/B."
"I cannot tell as to how many payments were made to PILCORP by the accused company on different leases. I did not collect record pertaining to any payment made by the company to the PILCORP. It is correct that liquidation proceedings were pending and at the time when I took up the investigation of this case. It is also correct that these proceedings are still pending. I did not obtain permission from the High Court to investigate this case. I did not take into possession the property which was the subject-matter of lease. I did not inspect those properties. It is not in my knowledge that the chilling plant was lying packed within the premises of the Mohib Textile Mill. I never went to Mohib Textile Mill in connection with the investigation of this case. I did not associate the accused with the investigation of this case in order to ascertain his version. I did not seek the assistance of an expert to understand the real nature of this case. It transpired during the investigation that PILCORP has filed a suit against Mohib Textile Mill. I did not collect any document."
30. Muhammad Asif Saigol, the appellant in this case, justified his position while trying to negate the allegation of willful default. The relevant excerpts from his statement are re-produced below:-- "During my 3 years absence from July, 1994 till September, 1997 the company's affairs were managed by Mr. Muhammad Nasrullah as Managing Director and Chief Operating Officer along with Mr. Muhammad Khaliq as Deputy Managing Director and Chief Financial Officer. All bank accounts were operated during the time by joint signature of these two individuals. During my absence from management the company's operations came to an abrupt halt on/after August 14, 1996 due to an illegal and mala fide ex parte action by American Express Bank, who obtained an attachment over all the stocks of raw material, finished goods and work-in-process in the company from a Banking Tribunal at Lahore."
"The lease agreement was prepared in accordance with the standard draft of the leasing company, which was not negotiated in any part and was executed by Mohib Textile Mills Limited to satisfy the Leasing Company."
"It is correct to the extent that the MTML executed various lease agreements with PILCORP and agreed to pay according to terms and conditions of the lease agreement but for the reasons that MTML was stampeded by various creditors through attachments, suits etc. Practically, it became impossible for MTML to operate and without operation of MTML the regular payments of lease rentals to PILCORP and other creditors did not remain possible. Despite this, MTML has, so far, against the first lease paid rentals of Rs,26,797,744 and Rs,21,021,760 etc. To PILCORP which fact establish beyond any shadow of doubt that MTML before close due to attachments of stock and suit was regular in discharging its liabilities towards its creditors."
"PILCORP never disbursed any hard cash to MTML rather the machinery was leased to MTML which machinery is still owned by PILCORP and in possession of the official Liquidator appointed by the Companies Judge of the Lahore High Court, Lahore pursuant to a winding up order passed on September 10, 1998."
' "In 1994, MTML signed another lease agreement with PILCORP for A/C equipment worth Rs,70(M) to be installed in MTML's Unit-3 which was a completely new unit expected to commence operations in 1994-95. MTML made a 10% initial deposit of Rs,7.0(M) to PILCORP against the said equipment lease. However, the lease equipment could not be delivered on time and because of delay in delivery the start-up of Unit-3 was delayed by more than 18 months. The Unit-3 had not yet gone into commercial production August, 1996 when the AMEX attachment caused the complete closure of MTML. Despite this, the company initially made rental payments to PILCORP amounting to Rs,14,021,760 in anticipation that the project would indeed commence production shortly. However, when the delays in start-up because extraordinary the company had no option except to seek revision in the commencement of the rentals for the leased equipment."
"MTML entered into a lease agreement with PILCORP and consequently the requisite documents were executed by the directors of MTML in their capacity as such."
"MTML entered into a lease agreement with PILCORP and the leased equipment was for installation and operation at MTML Unit-3. The Directors of MTML signed on behalf of MTML. All the assets of MTML were handed over to a receiver appointed by the Lahore High Court (Multan Bench) on behalf of a recovery suit filed by NBP on June 13, 1998. Subsequently, MTML was wound up by the Companies Judge of the Lahore High Court on September 10, 1998 against an application filed by NBP. Consequently, all the assets MTML were handed over by the Receiver to the Official Liquidators on October 10; 1998. MTML has assets valued at Rs,5 Billion, as acknowledged by NAB. All the assets are in possession of the Official Liquidators. MTML's assets are worth almost 3 times its liabilities.
Therefore, the question of recourse to the Directors/Guarantors does not arise. By operation of one law, MTML's management representing its shareholders, was deprived of control of the assets of MTML and through another law the former/deposed management is being help accountable for the liabilities of MTML."
"MTML executed the said agreements, however, for reasons beyond the control of the management i,e, attachments etc. The operations ofthe company were brought to a halt, and as a result the payment of lease rentals to PILCORP could not continue. Despite operating difficulties and market recession. MTML paid lease rentals against the first and second lease respectively to PILCORP of Rs,26,797,744 and Rs,21,021,760 etc. And against the second lease MTML has paid initial deposits and rentals of Rs,7,000,000 and Rs,14,021,760 despite the equipment delivery being delayed and the equipment remaining uninstalled and not operated during this time."
"All the assets of MTML were handed over to a receiver appointed by the Lahore High Court (Multan Bench) on behalf of a recovery suit filed by NBP on June 13, 1998. Subsequently MTML was wound up by the Companies Judge of the Lahore High Court on September 10, 1998 against an application filed by NBP. Consequently, all the assets MTML were handed over by the Receiver to the Official/Liquidators on October 10, 1998. MTML has assets valued at Rs,5 billion, as acknowledged by NAB. All the assets are in possession of the Official Liquidators."
"The payment of lease rental to PILCORP were regular till June, 1995 and as against as original equipment value of Rs,28,000,000 MTML had already paid rentals and initial deposits of approximately Rs,26,707,744 and Rs,21,021,760 to PILCORP. The leased machinery/equipment is still owned by PILCORP. Therefore, the question of enforcing the personal liability of the Directors/Guarantors in light of the facts narrated hereinabove, does not arise. MTML was regular in its payments till 1996 to its creditors but American Express Bank caused a major blow to MTML.
Almost all the other creditors whose sureties were illegally attached by AMEX were forced to take legal action in order to safeguard their interests vis-a-vis AMEX. The resultant run on the company by almost all its creditors, quickly brought the company to a complete and irreversible closure."
"The Unit-3 had not yet gone into commercial production August, 1996 when the AMEX attachment caused the complete closure of MTML. Despite this, the company initially made rental payments to PILCORP amounting to Rs,14,021,760 in anticipation that the project would indeed commence production shortly. However, when the delays in startup became extraordinary, the company had no option except to seek revision in the commencement of the rentals for the leased equipment.
Try then management of MTML in order to receive MTML's operations, approached all its creditors for resolution of outstanding disputes and legal proceedings through an amicable bilateral revised repayment arrangement. Such an effect was also undertaken with PILCORP.""PILCORP filed a suit for recovery of Rs,128,243,733 against MTML and its Directors. The suit is still pending while a preliminary decree of Rs,70,000,000 was passed by the Banking Judge of the Lahore High Court, Lahore.
Meanwhile, the company was would up on September 10, 1998. PILCORP is a party to the winding up proceedings."
"The decree to the extent of Rs,71,932,940 was passed but as submitted above the company had gone into liquidation and assets were taken over by official liquidator and now as per law it is the duty of official Liquidator to honour the decree and make payments to creditors. The assets taken over by official Liquidator are worth much more than MTML's liabilities."
"Neither is there any willful default nor was the previous management liable to discharge the company's obligations towards any of its creditors keeping the above mentioned fact in consideration."
"I am innocent and falsely involved in this case. This is a conspiracy not only against me, but also against the industry at large, which has resulted in a great damage to the confidence of both overseas and local investors in the investment climate of Pakistan."
31. Mr. M.A. Shahid Siddiqi, the then learned Judge of the Accountability Court, Lahore, on 7th July, 2001 found the appellant Muhammad Asif Saigol in this reference guilty under section 5(r) read with entry No,1(a) of the Schedule of offences appended with the NAB Ordinance No,XVIII of 1999 and sentenced him to imprisonment for 10 years. He was also burdened with a fine of Rs,20 million which was to be recovered under section 386 Cr.P.C. By way of attachment and sale of movable and immovable properties belonging to the appellant. Benefit under section 382-B Cr.P.C. Was given to the appellant/convict.
32. The main contention of the appellant .Before this Court is that these were cases of default simplicitor and not cases of willful default and, therefore, the provisions of section 9(a)(viii) were not applicable. It was argued that the definition of willful default which was introduced after actions were taken against the appellant, could not be stretched to his case. While it was also argued that the appellant could not be made liable retrospectively for acts which are stated to have been committed prior to the coming into force of the NAB Ordinance.
33. The Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad andothers (PLD 2001 SC 607) has addressed this issue and the relevant excerpt (at page 892) from the said case is reproduced below in extenso:-- "In a very recent judgment passed by a Full Bench of the Lahore High Court, Lahore, the question of 'wilful default' has been dealt with in the case Mrs. Shahida Faisal v. Federation of Pakistan (PLD2000 Lahore 508), relevant portion whereof reads thus:-- "24. From its reading, it is quite clear that a person who does not pay/return/repay the amount due to any bank, financial institution or statutory institutions within thirty days, that person becomes willful defaulter and is liable to be proceeded under the Ordinance. This is, however, only subject to an exception that willful default must not have been occasioned or caused by the lending institution due to its willful breach of agreement/contractual obligations. Seen from the above angle, it clearly follows that the circumstances of default became an offence punishable under the first Ordinance. Thereafter; the expression of 'willful' was added to it at Serial No,1 in amending Ordinance No,IV of 2000. From the above, two questions arise i,e, as to what is the nature of this offence and secondly whether it was/is hit by the principle of restrospectivity. With regard to first it is also to be seen in the context of the afore-described circumstances whereunder this was made an offence. The case of the petitioner is that it is a non-continuing offence while the case of the N.A.B. Is that it was/is a continuing one. Such question was considered by the apex Court of neighboring India in State of Bihar v. Deokaram Nenshi AIR 1973 SC 908 in following terms:-- ' A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirements and which involved a penalty, liability for which continues until the rules or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes and offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is 'committed once and for all'."
"The rule, so enunciated, was reaffirmed in AIR 1984 SC 1988. "
"25 The question 'whether a particular offence is continuing or not depends upon the language of the Statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting a particular act as an offence. Turning to the matter in hand in this petition, it is quite clear that the detenus did not pay the debt within the period committed by them. They did not make any promise to pay before the Court even. Seen from the above context, we have no option but to hold that the offence committed by the detenus is a continuing offence."
"26 Seen from the above chronological perspective, we have no difficulty in saying that act/omission of non-payment of loans was made a continuing offence. The nature of continuing offence cannot be examined from the date of first happening of that offence. This applies to the phenomena of default. The defaulter is under duty to pay his liability and commits continuing offence on each occasion and on each moment he does not pay his liability. The declaration of Chief Executive, can safely be said has no nexus with the nature of offence. The declaration was intended to provide opportunity to defaulter to clear their liabilities and save themselves from criminal proceedings. On this view of the matter we are of the considered opinion that offence of willful default as defined in the Ordinance is a continuing offence."
28. As to retrospective operation of the offence of 'willful default', the learned Full Bench of the High Court, in the above report, after referring extensive case-law on the subject from Indian jurisdiction, concluded as under:-- "29. In view of the facts and circumstances of the case in hand, we are very clear in our mind that the offence of willful default incorporated in Schedule to Ordinance No,XVIII of 1999 as amended by 19 of 1999 and 4 of 2000 is a continuing offence and petitioners who had neither paid the principal amount nor its markup cannot seek benefit under section 12 of Constitution; that the rule or retrospectively is not applicable to offence which is continuing in nature."
' And in paragraph 215 of its judgment (at page 903), the Hon'ble Supreme Court observed as under:-- "The matter may be looked at from another angle as well. The mere fact that at the time of entering into an agreement no punishment was prescribed for default in payment of loan or, bank dues, as the case may be, cannot possibly mean that the duty of the defaulter tore-pay the loan/dues also expired. The duty still remains. It continues till the loan/dues are re-paid as required under the agreement. Therefore, non-payment of loan/dues in terms of the agreement within the contemplation of section 5(r) is a continuing breach of duty or obligation, which itself is continuing if duty to repay the loan/dues as aforesaid continues from day to day and the non-performance of that duty/obligation from that point of view must be held to be a continuing default in the repayment of loan. Therefore, if it is continuing, there is a fresh starting point of limitation every day as the wrong continues. Viewed from this angle, there is no limitation and no question of retrospectively involved as long as the duty remains undischarged."
' And further in paragraph 219, it was observed as follows:-- "So far as the punishments and creation of offences by the impugned Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence than the one which was' available for it when committed. This is the limited impact of Article 12 of the Constitution.Therefore, the only prohibition as to retrospectively of the offence, contemplated under clause (1) (a) (b) of Article 12 of the Constitution, is not attracted here.
However, in order to ensure across-the-board accountability we order the following directions for the application of section 5(r) of the impugned Ordinance. The same shall be suitably incorporated in the Rules to be framed under section 34 of the Ordinance, which shall on promulgation become part of the Ordinance.
(i) No prosecution for 'willful default' shall be launched before the expiry of 30 days statutory notice and an additional 7 days' notice shall also be served on the alleged defaulter to satisfy Governor, State Bank of Pakistan that he has not committed any 'willful default'. The report of Governor, State Bank..Of Pakistan as to be prima facie guilt of innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other public dues falling within the contemplation of section 5(r) of the Ordinance. The Governor, State Bank of Pakistan shall record his recommendations within 7 days with reasons therein."
34. It was, however, argued before this Court that as was envisaged by the changed law, no 30 days' notice was given to the appellant and, therefore, without such a notice attribution of a willful default was ill-founded. The Supreme Court of Pakistan in the aforementioned case took note of this fact but had exempted all the pending cases from such observance.
35. It was next contended that an important ingredient of crime i,e, mens rea was not established at the end of the appellant because of the explanation he has given, the part payments he had made and the earnest endeavours put in by him for running the Industry whose assets were not squandered away but these were preserved before they were taken over by the liquidator. That the assets were still worth more than the liability and this itself gives rise to a strong presumption in favour of the appellant and against the allegations of willful default.
36. The next criticism of the learned counsel for the appellant was against the investigation. We have seen the statements of the Investigating Officer which have been reproduced above.These statements are disappointing rather shocking. It is unfortunate that the Investigating Officer who investigated all these three cases acted so callously although he claims himself to be an educated man and did not even bother to collect the statement of the appellant or record his defence version or to visit the spots or gather sufficient evidence for ascertaining whether these were cases of willful default.
37. After the appraisement of the evidence we are led to believe that nobody checked as to what the Investigating Officers were doing and this had happened at various levels. Such Investigating Officers if allowed to work in an organization as the NAB, would only bring havoc to the institution with tall claims as are reflected in the preamble of the law and would destroy all the national aspirations of bringing the corrupt to accountability.
38. In cases pertaining to economic crimes, it is essential for NAB to engage fair-minded economic experts so that experts or Chartered Accountants formed independent and fair views with respect to liabilities in such cases. Leaving the investigations to a person like Mr. Akram Ali Shad as has happened in these cases, surely meant frustrating rather defeating the legal requirements and thus the ends of justice. The Hon'ble Supreme Court of Pakistan while realizing the importance of an expert's view has, therefore, directed that in all the future references with respect to companies etc. a certification of the Governor of the State Bank of Pakistan is to be obtained first. Although the judgment of the Hon'ble Supreme Court of Pakistan was not to affect the pending cases but it would be still proper for NAB to appoint experts for scrutiny of even the pending cases if they were not at the stage of disposal so that the ends of justice were met. After all a State exits for the good of its people.
39. NAB as a National Institution will be respected by the people of Pakistan more when justice is assured to all and not otherwise or merely because of its clout. An institution has a great mandate which is highlighted in the preamble of its law and that ideal has to be saved from destruction and has to be taken care of faithfully in the national interest.
40. In the case of Khan Asfandyar Wali (aforementioned), the Supreme Court of Pakistan had directed the Government to ensure proper investigation and also to form an inhouse accountability system. But it appears that a lot has still to be done on the curative side.
41. Poor investigations will lead to poor results in an adversarial system and even good laws will become bad laws when badly implemented. Patriotic organizations have to set ideals before themselves which have to be followed with discipline and steadfastness. This is only possible if there is also accountability within the system so that the system weeds out the undesireables, otherwise the Anti-Corruption Act of 1947 was a better drafted law but because of its poor lamentation it failed to come up to our expectations.
42. We recommend that an inquiry be ordered for ascertaining as to why the Investigating Officer in this case acted so callously and had no regard to his responsibility under the law and thereafter to proceed in accordance with law
43. According to the appellant, this was a case of default simplicitor but the case of the prosecution is that this was a case of willful default. The explanations given by the appellant in all these three references are suggestive of efforts on his part to revive the business and industry of the group under reference. In this connection, those who came to support the prosecution case had also suggested likewise but as a new law had come into being and default had been committed, the complaints were lodged, while in the meanwhile we find beneficial legislation the approval of the Governor of the State Bank before initiation of any action against a business/industrial house, notice of 30 days before lodging of complaint etc. Coming into being; the benefits of which the appellant cannot take because of the dictum laid down in the case of Khan Asfandyar Wali.
44. Our own view is that these are borderline cases of wilful default or default simplicitor. The default mainly took place at a time when this law was not there and the general atmosphere was such that things were being taken easy because civil liabilities were not allowed to be converted into criminal liabilities as is the case.
45. Even during the course of arguments, we felt that the appellant was willing to pay the lawful dues although it was his case that correct statements of accounts have not been appended with the references and he doubted the figures.
46. It was also his claim that all the assets of the Company even though in possession of the liquidator were intact and money could be realized from them out of their sale. In this connection, the counsel referred to a proposal made by him to the NAB for the sale of the assets.
47. We also find that a factor out of his control was the economic condition and in his statement under section 342 Cr.P.C. In the case of PILCORP, he explained about the recession in his business which once according to him was an envy of others.
48. We are, therefore, of the view that whereas these are cases of wilful default on the touchstone of the NAB Ordinance, but the extenuating circumstances are very much there to be extended to the appellant. We, therefore, uphold the orders of conviction, but reduce the sentences to undergo in all these cases. However, we maintain the quantum of fines awarded in all these references. As was directed by the Courts below, these fines are to be recovered under section 386 of the Cr.P.C.
And from the assets of the Companies. The appeals are disposed of accordingly.