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Kishor Chunilal Shah and anr. Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 498 of 1982
Judge
Reported in1985(2)BomCR1; 1984MhLJ1031
ActsIndustries (Development and Regulation) Act, 1951 - Sections 24(1); Scooters (Distribution & Sale) Control Order, 1960; Code of Criminal Procedure (CrPC) , 1973 - Sections 468, 468(3) and 473
AppellantKishor Chunilal Shah and anr.
RespondentState of Maharashtra and anr.
Appellant AdvocateV.P. Tipnis, Adv.
Respondent AdvocateM.R. Kotwal, P.P.
Excerpt:
criminal - amendment - sections 468, 468 (3) and 473 of criminal procedure code, 1973 - whether amendment introduced by section 468 (3) can said to be new and substantive addition which was not in existence even impliedly along with existing section 468 (1) and section 468 (2) - section 468 (3) relates to offenses falling within two or more separate definitions and in joint trial accused can be tried for each such offense - legislature permitted and contemplated joinder of charges in one trial for different offenses - foundation of joint trial was in force long before such amendment - provision of section 468 (3) can be said to be intended to be in existence right from beginning when section 468 (1) and section 468 (2) were introduced - introduction of such amendment is not foreign or new.....v.s. kotwal, j.1. a three wheeler meant for earning income landed both the parties in difficulties. the two accused are being placed in the dock while the complainant, who is required to part with additional amount as also required almost to purchase litigation along with it. the petitioners herein are brothers, who are alleged to have indulged in venture in booking orders for registering scooters and three wheelers with bajaj auto company under pseudo names with a modus operandi to get the vehicles under those different names and to sell those earning some profits by which, as per the prosecution, some documents came to be forged while they indulged in breach of impugned order under which there was prohibition from transferring the vehicles for a period of two years. one such three.....
Judgment:

V.S. Kotwal, J.

1. A three wheeler meant for earning income landed both the parties in difficulties. The two accused are being placed in the dock while the complainant, who is required to part with additional amount as also required almost to purchase litigation along with it. The petitioners herein are brothers, who are alleged to have indulged in venture in booking orders for registering scooters and three wheelers with Bajaj Auto Company under pseudo names with a modus operandi to get the vehicles under those different names and to sell those earning some profits by which, as per the prosecution, some documents came to be forged while they indulged in breach of impugned order under which there was prohibition from transferring the vehicles for a period of two years. One such three wheeler was booked by the petitioners in the name of Pravinchandra Natoria in the year 1967 with the said company. The complainant, who lost his service decided to autorickshaw plying and as such was on the look out for a three wheeler. On getting information he approached the accused sometime in the year 1969-70 with a proposal to purchase a three wheeler and that the accused assured to sell the same within 3-4 months. A deal was struck under which though the official price was Rs. 8,500/- the complainant agreed to pay Rs. 11,500/- and thereby the petitioners-accused were expected to make a profit of three thousand rupees. It was in the month of April 1970 that the Company informed the petitioners-accused though in the pseudo name as Natoriya that allotment of scooter was ready for deliver in the name of Pravinchandra. Accordingly on 20-4-1970 the accused issued an authority letter authorising the complainant to take delivery of the vehicle directly from the Company. Armed with that letter the complainant took the delivery of the vehicle, though the amount was paid by accused No.1. While the authority letter was signed in the purported name of Pravinchandra by accused No. 2 and that is how each of the accused is alleged to have contributed his part towards the conspiracy. On taking the delivery of the vehicle by the complaintant, which was obviously for and on behalf of Pravinchandra on 30-4-1970. On the same day the complainant accompanied by accused No. 1 went to R.T.O. Office, Pune where the scooter was duly registered, which obviously had to be in the name of Pravinchandra. A number plate was allotted. After some days, the complainant again approached the accused as his permit was to expire and since he required renewal of the Permit, he desired that the vehicle should be transferred in his name. Accordingly accused and presumably accused No. 2 gave him a letter and application for permission for transfer of the vehicle and asked him to contact the Director of Transport. Bombay, for the said purpose. The complainant approached the said office obviously being oblivious to the potential danger and the lapse that was being committed when he was informed by the Director that he had been the victim of cheating by the accused persons since the vehicle could not be transferred in his name. Instead of therefore, getting the vehicle transferred in the complainant's name the papers were entrusted to the Police by the Director when the investigation commenced. It transpired that the orders were booked in the fictitious name of Pravinchandra, signed by accused No. 2 and all applications were also signed in the pseudo name of accused No. 2, while accused No. 1 had also contributed to the same. It also transpired that breach of Clause 9 of the Scooters (Distribution and Sale) Control Order, 1960 was committed, which was punishable under section 24(1)(iii) of the Industries (Development and Regulation) Act, 1951.

2. After completing investigation both the accused were charge-sheeted in the Court of the Judicial Magistrate, First Class, Pune in Criminal Case No. 10114 of 1975 for offences under sections 419, 420, 465 and 471 read with section 34 of the Indian Penal Code and Clause 9 of the Scooters (Distribution and Sale) Control Order, 1960 (hereinafter referred to as the said Order) read with section 24(1)(iii) of the Industries (Development and Regulation) Act, 1951 (hereinafter referred to as the said Act), alleging that they cheated the complainant as well as the Company and for that purpose certain documents were forged which were used as genuine documents and they also committed breach of the impugned order.

3. Pleading not guilty to the charge, both the accused denied all the adverse allegations disowning any participation in the episode. Thus allegations of forgery and using forged documents were denied while allegations of cheating were also denied. Same stance was taken as regards the breach of Order and Act.

4. The learned trial Magistrate accepted the prosecution evidence and convicted both of them under sections 419, 420, 465 and 471 read with section 34 of the Penal Code and sentenced each of them to suffer R.I. for two years and to pay a fine of Rs. 3,000/- in a default to suffer further R.I. for six months on each of four counts. In addition each was convicted under Clause 9 of the said order read with section 24(1)(iii) of the said Act and was sentenced to suffer R.I. for six months and to pay a fine of Rs. 3,000/- in default further R.I. for one month. Substantive sentences being made to run concurrently. A stipulation was annexed that out of the fine realised an amount of Rs. 3,500/- be paid to the complainant Raghunath Khadilkar as compensation under section 357(b) of the Code of Criminal Procedure.

5. This order was challenged by both the accused in Criminal Appeal No. 24 of 1982 in the Sessions Court at Pune. The learned Additional Sessions Judge while considering judgment after elaborately analysing the entire evidence and the rival contentions held that none of the offences under the Penal Code with which accused were charged was proved mainly on the ground that no deceit as such was practised as it was known not only to the complainant but also to the concerned officer of Bajaj Company. As regards the charge of forgery it was accepted that it was written by accused No. 2 especially in view of the positive assertion given by hand writing expert Shri Phansalkar. However, it was held that there was neither fraud nor dishonesty in the making of the said documents and their user especially as all the parties were fully aware of the modus operandi. In keeping with these findings the appeal was partly allowed and the conviction on these four counts under the Penal Code came to be set aside. However, the conviction was confirmed as far as breach of Clause 9 of the Order read with section 24(1)(iii) of the Act on the grounds that act of both the accused amounted to transfer of the vehicle in any manner which was against the said clause. The learned Judge, however, felt that sentence imposed by the learned Magistrate was leaning towards harshness and therefore, it was modified to the effect that accused No. 1 was directed to suffer R.I. for 15 days and to pay a fine of Rs. 5,000/- in default to suffer further R.I. for one and half months while accused No. 2 was sentenced to suffer R.I. for one month and to pay a fine of Rs. 4,000/- in default to suffer R.I. for one and half months. The order regarding payment of compensation was kept intact. It is this order dated October 19, 1982 that is being placed under challenge in this revision on behalf of two accused.

6. In so far as the order of acquittal on the counts under sections 419, 420, 465 and 471 read with section 34 of the Penal Code there is finality as the State has not preferred any appeal and in fact on this forum in this proceeding also State has not challenged the validity of the said order. Even otherwise the reasons assigned by the learned trial Judge in favour of that finding are quite cogent and are supported by the material on record. It is, therefore, unnecessary to burden the record by restating the said reasons the validity of which is not controverted even by the State. This, therefore, need not detain us.

7. Thus remains in the field the validity or otherwise of the conviction for breach of Clause 9 of the order read with section 24(1)(iii) of the Act. The Act was placed on statute in the year 1951 being Act 65 of 1951 and it is intended for the development and regulation of certain industries and the industry in question is included thereunder. Section 24 which is placed in Chapter IV pertains to the penalty and Clause (1) sub-clause (iii) embraces the situation where a person contravenes or attempts to contravene or abets the contravention of any order made under section 18-G of the Act. Section 18-G which is placed in Chapter III-B relates to the power to control supply, distribution, prices etc., of certain articles under which if it appears to the Central Government to be necessary or expedient for securing equal distribution and availability of fair prices of an article relating to any schedule industry it may by notifying order provide for regulating supply and distribution thereof and trade and commerce therein. Sub-clause (2) gives further details relating to controlling prices, regulating the distribution, prohibition from sale etc. The order in question is obviously enacted under this provision and is notified order, relating to the schedule industry as contemplated by section 3(j) and the first schedule pertains to the industry in question. Clause 9 of the Order in so far as is relevant prescribes that no person shall before expiry of two years in case of three wheeler and before expiry of one year in any other case from the date when the scooter was first purchased as a new scooter or offered to sell or entered into any other transaction involving transfer of possession of the scooter to any other person except and in accordance with the terms and conditions of the permit. In writing from the Controlling authority or Officer appointed by the State Government. Rest of the clauses are not quite material for this proceeding. The outcome of this analysis would show that a validly notified order pertaining to the industry in question prescribes prohibition for sale or transfer of any kind of vehicle within the stipulated period of two years after its purchase the breach of which is punishable under the Act.

8. Shri Tipnis, the learned Counsel for the petitioners, mainly contended that there is no sufficient evidence to suggest that it was accused No. 2, who wrote the documents or applications in question nor is there any evidence to suggest that all the vehicles at different times were booked and registered in the fictitious name by accused persons, and the Hand Writing Expert's evidence is not satisfactory. It was mainly contended that there is no sale as such when the scooter was already sold to the complainant and consequently Clause 9 has no application. It was then suggested though faintly that attest accused No. 1 did not participate in any fraud and thus would not be liable for the act of accused No. 2. None of these contentions prevailed over both the courts, who on appreciation of evidence on facts recorded finding against both the accused. In view of this situation and having regard to the limited jurisdiction in a revision application where reassessment of evidence is not permissible, it is not possible to uphold the validity of any of those contentions especially when all these contentions are properly repelled by the courts below and in particular the learned Additional Sessions Judge has elaborately discussed that aspect and assigned cogent reasons.

9. As regards the main contention that it does not amount to sale and as such Clause 9 is not attracted is obviously devoid of merits. The arguments in substance is to the effect that sale was already effected by the company in favour of the accused or in favour of the complainant and as such a sale thereafter by accused to the complainant would not be covered by Clause 9. There is a clear stipulation in the clause and in other clauses under the said clause and the other clauses of the order that the manufacturer or the dealer could not sell the vehicle to any person whose name was not registered. Similarly, the manufacturer or dealer was under an obligation to sell the vehicle in accordance with the number given to the person booking the vehicle. Admittedly, the name of the accused, though obviously under the guise of pseudo name was recorded in the register and, therefore, the manufacturer could not sell the vehicle except to the said person and, therefore, when the company had actually sold the scooter and handed over the delivery thereof to accused No. 2 as Pravinchandra Natoria basically the act of taking delivery was done by the complainant under authority letter from accused No. 2, meaning thereby that the complainant did not accept the vehicle nor did the company handover to him in his individual capacity but only as an agent of accused No. 2 and thus for all purposes it was given and handed over to accused No. 2 through the company. Consequently so far as the company is concerned it had acted within the terms of the order in a legal manner when the scooter was delivered by the Company to the complainant as agent of accused No. 2. It was not agreed between the parties whether the company was to sell the scooter to the complainant. The learned Appellate Judge, therefore, rightly held that unless the property or scooter legitimately passed over to the accused they could not transfer it to the complainant and, therefore, when the complainant took the delivery it was exclusively in the capacity as an agent of the accused backed up by written authority merely to take the delivery and not to get the property. It is only after the acceptance of the delivery by the complainant in his capacity as an agent as rightly observed by the lower Appellate Court that the complainant changed his capacity and then became transferee of the vehicle from the accused and not from the Company. Under the circumstances, the Appellate Court was fully justified in repelling the contention of the defence in that behalf. The other contention that it was not a sale as such and as such Clause 9 does not apply, is equally devoid of any substance. For obvious reason that mischief contemplated to be covered by Clause 9 is not restricted only to the sale but any other transaction involving transfer of possession of vehicle to any other person except under and in accordance with the terms and conditions of permit renders itself liable for penal consequences. This would, therefore, mean that de hors of notion of sale any other transaction which involves transfer of possession is sufficient to attract the provision. In the instant case, in fact there is a sale by the accused to the complainant and in addition there is a clear transfer of possession and, therefore, on both these counts Clause 9 would squarely apply and act comes within the mischief of the said clause.

10. As regards the complicity of accused No. 1 there is overwhelming evidence, the foremost of which is that it is well established by evidence that he had accompanied the complainant to the Auto Company with a letter of authority by accused No. 2; he was physically present when the complainant produced the said letter and took delivery of the vehicle and the most important is that it is he, who paid the amount of Rs. 8,500/- as price of the vehicle to the company on behalf of accused No. 2, though in the fictitious name. The second overt act is reflected in his accompanying the complainant to the R.T.O. Office when the vehicle was registered in the name of the said fictitious person and when the application and other documents were tendered. These acts of accused No. 1 read in proper perspective and in proper context of all attendant features make his liability complete. As regards accused No. 2, in addition to these features there is positive evidence of Hand Writing Expert Shri Phansalkar and that evidence has not been seriously challenged in the cross-examination. All these documents in the fictitious name of Pravinchandra Natoria have been filled in and signed by accused No. 2, which include the registration for booking of the vehicle, the letter of Authority, application for registration and application for transfer. Significantly when the complainant was asked to go to the Director with an application for transfer of vehicle none of the accused accompanied him as they were knowing that their claim would be exposed at that end. It is also on record that several scooters were booked in the fictitious name of different persons and it is claimed that has been done by both these accused persons and the address given in respect of those booking is one and the same and which happens to be an address of the godown of the accused. The non-application of charge under section 34 of the Penal Code under the circumstances would hardly make any difference as rightly observed by the learned trial Judge.

11. Having regard to all these features involvement and active participation of both the accused individually as also collectively is well established in the context of breach of Clause 9 of the order made punishable under section 24(1)(iii) of the Act.

12. The next point which was canvassed by Shri Tipnis, the learned Counsel with utmost vigour pertains to the plea of limitation as contemplated by section 468 of the Code of Criminal Procedure. In substance the argument is to the effect that the accused were being prosecuted for several offences each of those offences carries with it requisite qualification under which prosecution for that offence must be filed within a particular period as contemplated by section 468. Thus for instance, an offence which is punishable only with fine then the prosecution must be lodged within six months. The offences under which the accused are ultimately convicted by the lower Appellate Court falls in this category. If the offence is punishable with imprisonment for a term exceeding one year then the limitation is of one year for filing the prosecution and lastly the prosecution must be lodged within three years if the offence is punishable with imprisonment ranging between one year and three years. The offences in question fall in all the three categories. The suggested submission, therefore, is that since for each offence a different period of limitation is prescribed and since emphasis is on the words 'offences under sections 467 and 468 of the Code' should be considered in water tight compartments meaning thereby that the offence under the impugned Act and Order would be triable with competence only if the charge-sheet is filed within six months. The further submission is that sub-section (3) of section 368 has been added by Act 45 on 18th December, 1978. This provision stipulates that in a case of joinder of charges in a joint trial the period of limitation to be computed would be one which would be prescribed as maximum. This provisions reads as :--

'For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.'

13. The learned Counsel, therefore, submits on this basis that so far as the offence impugned under the Act and Order it was out of limitation and that this provision which was placed under the Statute not at the time when the cognizance was taken but much later then it cannot have retroactive effect more so as in the first instance it is a fresh and entirely a new addition and secondly it affects the existing right of the accused to claim immunity on the ground of limitation. These contentions are countered by Shri M.R. Kotwal, the learned Public Prosecutor for the State, as according to him this is not an amendment as such but it is a clarification meaning thereby that it was impliedly in existence even prior to 1978 and that to dispel any doubt this clarification was introduced by this amendment and once this is treated as a mere clarification and not a new, distinct and substantive amendment, then it must have retrospective effect.

14. Section 468 pertains to the period of limitation which was introduced in the statute for the first time when the new Code of Criminal Procedure came into existence and became operative as and from 1st April, 1974. In the old Code there was no corresponding provision about the period of limitation. The amendment by sub-clause (3) has been introduced on 18th December, 1978, which envisages the joint trial and does not permit splitting up to offences. On the factual aspect the record reveals that the alleged offence was committed on April 20, 1970 the complaint was filed on December 9, 1971, accused were arrested and provisional charge-sheet was filed on May 17, 1973 while final charge-sheet was filed on June 7, 1975. Shri M.R. Kotwal, the learned public prosecutor, however, raised yet another objection at the threshold which is of fundamental nature.

According to him, the New Code came into existence as and from 1st April, 1974 and under the old Code there was no such bar of limitation. Section 484(2)(a) which reads as :---

'(a) If, immediately before the date on which this code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal, application, trial inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force.'

If that be so then according to the learned Counsel the controversy generated on the basis of the provisions of New Code pale into background and would actually evaporate. This position appears to be unassailable, though Shri Tipnis, the learned Counsel, did endeavour, with no substance, to get over this inconvenient situation. This provision makes it very clear, which is a saving clause, that it would not affect the pending proceeding and it is so spacious that it covers under its sweep appeal, application, trial inquiry or investigation and it specifically stipulates that pending proceeding, or trial shall be continued and proceeded with in accordance with the provisions of the OLD Code, meaning thereby that those would not be affected by any bar of limitation. In my opinion, this argument must prevail in which event the entire structure sought to be constructed by Shri Tipnis, the learned Counsel, must topple down. On this count alone the defence contention deserves to be rejected.

15. In this view of the matter it would not really be necessary to go into details of other shade of controversy. Which is canvassed by Shri Tipnis, the learned Counsel, and which is already indicated hereinabove in the context of sub-section (3) of section 468 of the Code submitting that same being an amendment introduced in the Year 1978 it would not have retrospective effect in the year 1975 or 1976 when cognizance was taken by the learned trial Magistrate and as such the impugned conviction under the Act or Order will have to deemed to be barred by limitation. Since it has been strenuously argued as an alternate plank, in deference to the learned Counsel, and since it raises a question of general importance that is likely to crop up often, I deemed it desirable to deal with that aspect as well. I, however, must place on record that this plea of limitation was never argued either in the trial Court or the lower Appellate Court and is being canvassed for the first time on this forum in the revisional jurisdiction. This by itself would have been enough to disentitle the accused to agitate this point. Since ,however, the point raised is of fundamental importance and is likely to go to the root of the matter, the interest of justice require that same should be allowed to be canvassed even on this forum for the first time and it is on that score that this concession and liberty is granted.

16. The main question as generated in this controversy is whether the amendment introduced by sub-section (3) can be said to be a new and substantive addition which was not in existence even impliedly along with the existing sub-clauses (1) and (2) or whether it can be deemed to be only by way of clarification or declaration in which event it can be presumed that it was really in existence on the earlier occasion also. If the second category is accepted then it follows as settled principle that any such amendment by way of clarification or declaration will have to be given retrospective effect.

17. The Code of Criminal Procedure refers in Chaper XVII to the charges and the nature of trial to be conducted. Sub-head 'B' refers to joinder of charges and sections squeezed in there are from section 218 onwards. Section 218 stipulates separate charges for distinct offences as joint one. Section 219 permits three offences of the same kind within one year triable in the same trial. Section 220 is relevant, which relates to the trial for more than one offence and which stipulates that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried as one offence. Sub-clause (3) relates to offences falling within two or more separate definitions and in a joint trial accused can be tried for each of such offences. Sub-clause (4) relates to several acts out of which one by itself or more than one by themselves constitute an offence and when combined they form different offences then accused can be tried in one trial for such combined offences or for any offence constituted by one or more acts. Section 221 gives protection when it is doubtful what offence has been committed. Section 222 permits conviction for a minor offence though the accused is charged with major offence. Section 223 onwards pertain to the joinder of accused persons with which we are not concerned in this proceeding.

18. It thus follows to be in consonance with the scheme of the Code that once the legislature permitted and in fact contemplated joinder of charges in one trial for different offences which may be during the course of the said transaction or may be of the kind envisaged under those provisions and when the foundation of joint trial is accepted and which was in force even before the amendment of 1978 was placed under statute, then the said amendment of sub-section (3) which pertains predominantly to joint trial for various offences embracing the situation of joinder of charges can well be said to be intended to be in existence right from the beginning when sub-section (1) or (2) of section 468 were introduced. Consequently, the introduction of sub-section (3) is not foreign or utterly new or unconnected with the main section. It has been in consonance with the scheme of the Code. From that point of view, what was felt by the legislature was that though it would be deemed to be in existence even before 1978 still as a further clarification, or explanation by way of caution such introduction was thought necessary which is far away from saying that it came into existence for the first time and as such it would be more legitimate to hold that it was very much in existence though in latent form prior to 1978, which was brought on the surface in the patent form after 1978 merely by way of clarification or in the shape of declaratory amendment.

19. It is also worth noting that if a prosecution is launched on the basis of police report then one may contemplate filing a provisional charge-sheet under the code in which event perhaps to save the limitation a provisional charge sheet is filed though filing of final charge-sheet is postponed after all the material is collected. However, an anomaly will arise if a private complaint is to be lodged for various offences enacted during the course of same transaction and for some of which collection of further material is absolutely essential and could not be collected inspite of due diligence of the complainant it would be difficult as a practical roposition that the complainant is expected to file a tentative complaint first and final complaint subsequently or full fledged complaint first so that the Magistrate can keep it pending regarding some offences and can take cognizance of those which are likely to go out of limitation. The outcome of controversy must be such that the ratio could be harmoneously and universally applicable to all contingencies.

20. It may be incidentally observed that the offence is defined under the Penal Code as an act or commission punishable by any law for the time being in force. It is enunciated in Shreekantiah Ramayya v. State of Bombay, : 1955CriLJ857 that an offence seldom consists of a single act. It is usually comprised of several elements and as a rule, a whole series of acts must be proved before it can be established, which observations high light that an offence may comprise of several well knit acts and it is not as if it consists of single act.

21. As discussed earlier, section 220 of the code contemplates series of acts so connected together as to form the same transaction wherein more offences than one are involved, in which event the accused can be tried for all offences on all counts. Similarly if the acts constitute offence falling within two or more separate definitions of any law the accused may be tried at one trial for each of such offences. Further, if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. Section 221 further takes care of the situation when it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charge may be tried at once. It would, therefore, be manifest that there is a well knit series of acts forming same transaction advancing in the same direction to achieve common object by committing fraud in which event those acts constitute different offences whereas all the acts are almost inseparable, and if they are to be tried at one trial, which is permissible and legitimate then it would lead to absurd result to apply different period of limitation for those different offences arising out of the same set of facts or even to visualise filing of separate charge-sheets during the course of same investigation from time to time for those offences. Looked at from this angle also the defence contention is idle.

22. In my opinion, relevant provision of section 468(3) is nothing but a mere clarification or a declaratory or explanatory amendment and such a construction alone would further the scheme and object of the Code and any interpretation contrary to this would not only be irrational and out of harmony but would destroy the very purpose of enacting such provision under the Code. It is true that such provision of limitation should be construed strictly essentially to give effect to the legislative intent behind enacting said provision as it was intended to ward off stale prosecutions, so that a litigant will have to be diligent in prosecuting his remedy and as a counter part uncertainty may not prevail over the prospective accused for years together. This object cannot be destroyed by the construction, which I am inclined to make. Blending of all these features would create an amalgam which ultimately would be harmonious and in consonance with the legislative intent and object behind the said enactment as also in furtherance of the provisions of the Code.

23. Once this premise is accepted then such a provision becomes retrospective in operation which must follow as a logical rule and on this count there is not much controversy between the parties. This aspect, therefore, need not detain us.

24. Cradles on Statute Law has mentioned that explanatory and declaratory act are always retrospective unless of course contrary intention is manifested expressly by such provision.

25. In Attorney General v. Pougett, 3 Price 381 it has been stated that under the facts and circumstances there was a mistake or omission of weight for which sum expressed was to be payable when it was observed as :---

'The duty in this instant case was imposed by the first Act, but the gross mistake of the omission of the weight, for which sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed and they must be taken together as if they were one and the same Act and the first must be read as containing in itself, in words, the amendment supplied by the last. The mistake of the former Act being corrected by the Act which was afterward passed for that purpose, had relation back to the time when the duties were originally imposed.'

Same pertains to the duty of exportation of goods and omission about the exact nature was sought to be corrected by the Act. Which was held as it was a declaratory amendment and not an addition as to correct omission. Thus it would relate back to the time even before the amendment was introduced.

26. In Attorney General v. Theobald (1890) 25 QBD 557 the earlier statue had provided for any property passing under any past or future voluntary settlement by dead or other instrument not taking effect as a will where an interest in such property for life is reserved to the settlor. The amendment was introduced under which the description of property underwent modification and was sought to be construed as voluntary settlement including any trust in favour of a volunteer and it contained in a deed or other instrument effecting the settlement, whether such deed or other instrument was made for valuable consideration or not. It was held that the words 'voluntary settlement' having given rise to doubts, the legislature thought of introducing an amendment and, therefore, it was observed as :---

'Therefore, the earlier Act must be read as having the meaning declared by the later Act. The words are of declaratory character directing that, in all cases, where the construction of sub-section (3) of section 38 comes in question after passing of the Act, the former Act shall be construed as prescribed by the later Act.'

27. In Channan Singh v. Smt. Jai Kaur, : [1970]1SCR803 , the Supreme Court had an occasion to deal with such aspect though it was under Punjab Pre-emption Act. The question arose as to whether the amendment of 1964 was a substantive amendment and in that behalf it was observed as :---

'The amending Act of 1964 is merely of a clarificatory or declaratory nature. Even in the absence of the words which were inserted by the Amandment Act of 1964 in section 15(2)(b) the only possible interpretation and meaning of the words 'In the son or daughter of such female' could have reference to and cover the son or daughter of the husband of the female. The entire scheme of sub-section (2) of section 15 is that the right of pre-emotion has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance.'

There by Amendment of 1964 in section 15(2)(b) between words 'such' and 'female' the words 'husband of the 'were inserted, which reads as the son and daughter of husband of the female. It is this that was treated as only clarificatory or declaratory amendment having regard to the scheme of the Act and thus was presumed to be in existence even before the amendment. In the ultimate analysis the Supreme Court observed as :---

'It is well settled that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. Consequently retroactive intention can be attributed to the legislature when the Amendment Act of 1964 was enacted.'

28. The law is well propounded by Full Bench decision of Kerala High Court in Narayana Pattar v. State of Kerala A.I.R. 1979 S.C.139. this pertains to the validity of the transfers and the concept of ceiling. Therein it was held that effect of sub-section (3) of section 84 as inserted by Kerala Act 17 was that in every case where subsequent to the coming into force of the said sub-section a question as to the validity of a transaction of voluntary transfer comes up for determination under sub-section (1) or sub-section (2) of that section on the basis of clarification given by the legislature regarding 'ceiling area' and that in other words the ceiling area of transferee will have to be reckoned on the basis of the revised limits prescribed by sub-section (2) of section 82 as amended by Act 35 of 1969 and not with reference to the terms of the said sub-section, as they originally stood. It was held that therefore, sub-section (3) of section 84 is declaratory provision intended to explain and clarify the extended legal provision regarding the meaning of the expression 'ceiling area' and, therefore, it has to be given retrospective operation. It was further observed as :---

'Where a statutory provision is in its nature declaratory it will be presumed to be retrospective unless a contrary intention is clearly indicated by the legislature, the reason being that it underlying purpose of explaining or clarifying the existing law will be effectively served only by giving it such a retrospective construction.'

29. A passage from Jones v. Bennet 1890 L.T. 705 was quoted which reads as :---

'A declaratory Act means to declare the law, or to declare that which has always been the law, and there having been doubt which have arisen, Parliament declares what the law is and enacts that it shall continue what it then is'.

30. The reason for making such law retrospective has been very aptly enunciated because the underlying purpose of clarifying the existing law can be effectively served only by giving retrospective construction otherwise clarification becomes ineffective and remains in vacume.

31. Crales on Statute Law has even extended this concept by observing that where statute is passed for the purpose of supplying an obvious omission in a former statue, the statue has relation when prior Act was passed.

32. Having taken resume of all these features against back drop of above ratios I have no reservation to hold that the amandment by reason of sub-section (3) to section 468 is merely clarificatory, explanatory or declaratory amendment and not a new or substantive amendment and thus must relate back having retrospective effect. Consequently that can be presumed to be existence on 7th May, 1973 when cognizance was taken on the basis of provisional charge-sheet on 17th June, 1975 when final charge-sheet was filed. Once this premise is accepted then it harmoneously follows that for such a joint trial the period of limitation shall be determined with reference to the offences which are punishable with more severe punishment or most severe punishment. In the instant case, all the offence are such for which no period of limitation is prescribed under section 468 and thus those are obviously within time and thus accordingly cognizance could be legitimately taken in respect of those offence and if that be so then in joint cognizance of these lesser offences under trial the Act and Order would logically follow as having been competently taken notwithstanding the lesser period of limitation is prescribed for the said lesser offences.

32-A. As an alternative plank, we may observe as indicated earlier that this point was not raised in the two courts below. It that be so the provision of section 473 of the Code can well come into play which gives discretion to the Court for condoning delay if properly explained when cognizance could be legitimately taken and the alternate category is that cognizance can be taken where the Court feels that it is necessary to take cognizance in the interest of justice even though there is delay in launching the prosecution. It this fact was pointedly brought to the notice of the Court then it was no difficult for the Court to condone delay or to take cognizance in the interest of justice. Having regard to the gravamen of the offence it would not be permissible to encourage such technical pleas, thereby destroying the ends of justice especially when those are being taken for the first time. In the behalf I may refer to the ratio in Bhagirath kanoria v. State of M.P. : [1985]1SCR626 . There the accused had not paid the contribution towards the Employee Provident Fund land family pension. A plea was that it was not a continuing offence. The Supreme Court felt that it was a continuing offence and therefore, provision of section 473 would cover the said proceeding, which contemplates that fresh period of limitation begins to runs at every moment of the time during the continuance of the affair. However, in the alternative the Supreme Court observed as :---

'Before we close, we consider it necessary to draw attention to the provisions of section 473 of the Code which we have extracted above. That section is in the nature of an overriding provision according to which notwithstanding anything contained in the provisions of Chapter XXXIV of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do in the interest of justice. The hair splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of the nature, courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in section 473 of the Code.'

33. The observations therein apply with equal force to the facts of the instant case and, therefore, accepting that ratio with respect resort can be had to section 473 of the Code and this would be an additional ground for discarding the contention raised on behalf of the defence.

34. Consequently, the conviction of the accused on the said counts as recorded by the lower Appellate Court is fully justified on merits.

35. Then remains in the field the alternate, plank canvassed by Shri Tipnis. the learned Counsel, about the quantum of sentence. The lower Appellate Court sentenced accused No.1 to R.I. for 15 days and to pay a fine of Rs. 5,000/- in default to R.I. for one and half months and accused No. 2 is sentenced to R.I for one month and to a pay a fine of Rs. 4,000/- in default to suffer R.I. for one and half months. Shri Tipnis, the learned Counsel, strongly submitted that having regard to the peculiar facts and circumstances this is not a case where substantive sentence is called for the interest of justice. It is interesting to note that the learned Additional Sessions Judge did not endorse the process adopted by the learned trial judge in imposing maximum substansive sentence and felt that there should be substantial reduction in the said quantum. However, the learned Judge felt that the transaction was sort of social evil and merely imposing fine would be nothing but 'business losses' for the accused. It is on that basis that he felt some substantive sentence was essential. It is true that gravity of the offence cannot be undermined especially when several two wheelers and three wheelers were booked in the fictitious name and there was obviously a profit motive by such clandestine move, which would disturb the structure and undercurrent of the Act and order, with reference to the production and fair and equal distribution of the vehicles. However, there are certain circumstances which would justify Shri Tipnis asking for leniency in the first instance, the alleged offence has been committed as long back as in 1970, while this petition is being disposed of in the year 1984. The accused No. 1 is Insurance Agent; both the accused are brothers and come from respectable family. The learned Appellate Judge has recorded a finding that the staff attached to Bajaj Auto Company was in the know of this transaction and has actually assisted the accused in the said transaction and it is not therefore, as if that it was a one-sided affair. Further Shri Tipnis, the learned Counsel, rightly submits that it is not as if that even the complaint was that innocent or had no know knowledge about the real nature of the transaction and this appears to be correct. It is also brought on record that immediately the vehicle was transferred that accused did all the steps even by filling an application for transfer with the Director of transfers. The profit is to the tune of Rs. 3,000/- which was to be distributed amongst two brothers. There is no positive evidence atleast in this proceeding that several other vehicle were actually booked by these very accused persons and the only evidence suggested is that those were at the same address though there is no clear evidence that same address can be tagged to the same accused. There are no bad antecedent to the credit of the accused and the accused are comparatively young persons with family to maintain and they obviously regret having bad experience and they had to undergo agonies of trial right from 1975. Urge for easy money is many a times human weakness while lust for easy money is some times a human melody. However, that by itself should not be a ground to destroy and demolish the entire harmony of family and the person would deserve to get a chance in life. Many a times short substantive sentence on the contrary creates adverse impact as instead of having an advantageous effect it my tend to convert a person coming from a good family into hardened criminals being in the midst of criminal though for a short time. It is also brought to my notice that both the accused persons were in the custody for nearly four days after judgment of the Sessions Court was proclaimed. Taking survey of all these features in a cumulative manner, this is not a fit case where any substantive sentence is warranted in the interest of justice and the accused deserve to get option of payment of fine. The maximum amount of the fine that can be imposed under the Act and Order is Rs. 5,000/-. The learned Appellate judge has imposed same amount of fine on accused No. 1 while accused No. 2 has been directed to pay a fine of Rs. 4,000/-. The quantum of fine imposed by the lower Appellate Court which is justified under the circumstances requires no interference, whereas the substantive sentence so imposed by the lower Appellate Court can well be deleted. the learned Public Prosecutor has no serious objection in adopting this process under which both the accused can be given option of paying fine permissible under the Act and the order. This would serve the ends of justice without causing any prejudice to either sides. To that extent the petition succeeds.

36. Rule made partly absolute.

37. The order of conviction under section 24(1)(iii) of the Industries (Development and Regulation) Act, 1951 read with Clause 9 of Scooters (Distribution and Sale) Control Order, 1960 recorded against both the petitioners accused is maintained. However, sentence imposed by the learned lower Appellate Judge is modified by deleting the substantive sentence and is substituted to the effect that petitioner No. 1 (original accused No. 1) is sentenced to pay a fine of Rs. 5,000/- in default to R.I. for one and half months while petitioner No. 2 (original accused No. 2) is sentenced to pay a fine of Rs. 4,000/- in default to suffer R.I. for one and half months.

The other order of an amount of Rs. 3,5000/- being payable to the complaint by way of compensation would remain intact.


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