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quantum of sentence In this case, so far as appellant M.C. Gupta is concerned, he is about 70 years’ old and is stated to be suffering from various ailments. The crime in question took place about 24 years ago. In the circumstances, we are of the opinion that his sentence of two years’ RI for offence under Section 5(2) read with Section 5(1)(c) of the Act of 1947 should be reduced to one year’s RI and is accordingly reduced. Rest of the sentences awarded to him shall remain intact. So far as appellant Mohan Lal Gupta is concerned, he has been sentenced to one year’s RI for offence under Section 5(2) read with Section 5(1)(c) of the Act of 1947. Considering the fact that he was the beneficiary of the dishonest and fraudulent misappropriation of the Company’s money, we are not inclined to reduce his sentence. We clarify that the sentence of fine imposed on both the appellants is confirmed. The appeals are disposed of in the aforestated terms.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1332 OF 2012
[Arising out of Special Leave Petition (Crl.) No.3786 of 2012]
M.C. GUPTA … Appellant

Versus

CENTRAL BUREAU OF INVESTIGATION,
DEHRADUN …
Respondent

WITH

CRIMINAL APPEAL NO. 1333 OF 2012
[Arising out of Special Leave Petition (Crl.) No.5908 of 2012]
MOHAN LAL GUPTA … Appellant

Versus

CENTRAL BUREAU OF INVESTIGATION,
DEHRADUN …
Respondent

 

JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. These appeals, by special leave, are directed against the judgment
and order dated 27/03/2012 delivered by the Uttarakhand High Court
confirming the judgment and order of conviction and sentence dated
08/10/1999 / 25/10/1999 passed by the Special Judge, Anti Corruption, U.P.
(East), Dehradun in C.B.I. Case No.3/90, whereby the Special Judge
convicted the appellants, inter alia, under the provisions of the
Prevention of Corruption Act, 1947 (for short, “Act of 1947”).
3. It is necessary to narrate the facts of the case. Appellant M.C.
Gupta was posted as Assistant Divisional Manager, New India Assurance
Company Limited (for short, “the Company”). He was authorized by the
Company to operate its Account No.314 held with the Punjab National Bank,
Civil Lines, Moradabad. Appellant Mohan Lal Gupta was the proprietor of
M/s. Mohan Dal Mill. Account No.SSI/53 was held in the name of M/s. Mohan
Dal Mill with State Bank of India, Orai, District Jalaun, Uttar Pradesh.

4. On 09/07/1988, appellant M.C. Gupta issued cheque No.QDE-800186 in
the sum of Rs.1,00,200/- from the account of the Company and asked the bank
to prepare a draft of Rs.1,00,000/- in favour of M/s. Mohan Dal Mill.
Appellant M.C. Gupta himself prepared the draft application dated
09/07/1988. The bank, accordingly, prepared a draft of Rs.1,00,000/- on
the same date and debited the amount of cheque from the account of the
Company. Appellant M.C. Gupta himself collected the said draft from the
bank and sent it to his relative appellant – Mohan Lal Gupta at Orai, who
deposited the same on 14/07/1988 in the aforementioned account of M/s.
Mohan Dal Mill vide pay-in-slip dated 14/07/1988. Thus, appellant M.C.
Gupta, in collusion with appellant Mohan Lal Gupta, dishonestly and
fraudulently misappropriated the Company’s money, which is public money,
for wrongful gain to appellant Mohan Lal Gupta, thereby causing
corresponding losses to the Company.
5. When the siphoning off of money came to light, a FIR was lodged on
19/02/1990 under Section 5(2) read with Section 5(1)(c) of the Act of 1947.
After investigation, C.B.I. submitted charge-sheet against both the
appellants before the Special Judge. After perusing the evidence, the
Special Judge convicted and sentenced appellant M.C. Gupta to RI for one
year and a fine of Rs.1,000/- for offence under Section 120-B of the IPC.
He was also sentenced to RI for two years and a fine of Rs.2,000/- for
offence under Section 409 of the IPC. In addition, he was sentenced to RI
for one year and a fine of Rs.1,000/- under Section 5(2) read with Section
5(1)(c) of the Act of 1947. Appellant Mohan Lal Gupta was sentenced to RI
for one year and a fine of Rs.1,000/- for offence under Section 120-B of
the IPC. He was also sentenced to RI for one year and a fine of Rs.1,000/-
for offence under Section 409 of the IPC. He was also sentenced to RI for
one year and a fine of Rs.1,000/- for offence under Section 5(2) read with
Section 5(1)(c) of the Act of 1947 read with Section 120-B of the IPC. All
sentences were to run concurrently. In default of payment of fine, the
appellants were to undergo imprisonment for six months.

6. Being aggrieved by the order of conviction and sentence, both the
appellants filed separate appeals to the High Court. As we have already
noted, by the impugned order, the appeals were dismissed by the High Court
and, hence, the present appeals.

7. The basic submission of Mr. Amarendra Sharan and Mr. S.K. Dubey,
learned senior counsel for the appellants is based on the fact that the Act
of 1947 stood repealed by the Prevention of Corruption Act, 1988 (for
short, “the New Act”). The alleged crime took place between 9/7/1988 and
14/07/1988 and FIR was lodged in respect of the same on 19/02/1990 alleging
offences under the Act of 1947. Counsel submitted that FIR could not have
been lodged for the offences punishable under the Act of 1947, which stood
repealed by the New Act. It was urged that in fact, by reason of repeal,
proceedings under the Act of 1947 stand obliterated. In this
connection, our attention was drawn to Section 30 of the New Act. Sub-
section 1 of Section 2 thereof provides for repeal and saving. It states
that the Act of 1947 stands repealed. It was pointed out that Sub-section
2 of Section 30 of the New Act states that notwithstanding such repeal, but
without prejudice to the application of Section 6 of the General Clauses
Act, 1897 (for short, “the GC Act”), anything done or any action taken or
purported to have been done or taken under or in pursuance of the Acts so
repealed shall, in so far as it is not inconsistent with the provisions of
the New Act be deemed to have been done or taken under or in pursuance of
the corresponding provisions of the New Act.
8. Counsel pointed out that nothing was done or no action was taken in
pursuance of the Act of 1947 and, therefore, there was no question of
coming to a conclusion that any action taken could be deemed to have been
taken under the provisions of the New Act. Since no action was taken under
the Act of 1947, there was no question of saving it. Counsel also drew our
attention to Section 6 of the GC Act which speaks about the effect of
repeal. Counsel submitted that the instant case is not covered by any of
the sub-clauses of Section 6 of the GC Act so as to come to a conclusion
that any investigation, legal proceeding or remedy may be instituted,
continued or enforced or any penalty or punishment may be imposed as if the
repealing Act had not been passed. Counsel submitted that, in the
circumstances, the entire prosecution is vitiated and, hence, it is
necessary for this Court to quash the proceedings and set the appellants
free. Alternatively, counsel submitted that since the amount of
Rs.1,00,000/- was repaid by the appellants before 19/02/1990 i.e. even
before the FIR was lodged, this Court should reduce the sentence of the
appellants to the sentence already undergone by them. In support of this
submission, counsel relied on Satpal Kapoor etc. v. State of Punjab
etc.[1] and Shiv Nandan Dixit v. State of U.P.[2]. Mr. Chandhiok,
learned Additional Solicitor General, for the C.B.I. supported the impugned
judgment.

9. We are unable to accept the submissions of learned counsel for the
appellants. It is true that according to the prosecution, the alleged
offence took place between 9/7/1988 and 14/7/1988. The New Act came into
force on 9/9/1988. The FIR was registered against the appellants, inter
alia, for offences punishable under the Act of 1947. Charges were framed
against the appellants, inter alia, under the provisions of the Act of 1947
and the appellants were tried and convicted as aforesaid. Since the repeal
of Act of 1947 is the major plank of the appellants’ submissions, it is
necessary to quote Section 30 of the New Act which repealed the Act of
1947. It reads thus:

“30. Repeal and saving:- (1) The Prevention of Corruption Act, 1947
(2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are
hereby repealed.
2) Notwithstanding such repeal, but without prejudice to the
application of section 6 of the General Clauses Act, 1897
(10 of 1897), anything done or any action taken or
purported to have been done or taken under or in pursuance
of the Acts so repealed shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to
have been done or taken under or in pursuance of the
corresponding provision of this Act.”
Sub-section 1 of Section 30 makes it clear that the Act of 1947 has
been repealed. Sub-section 2 of Section 30 of the New Act says that
anything done or any action taken or purported to have been done or taken
under or in pursuance of the repealed Acts in so far as it is not
inconsistent with the New Act, shall be deemed to have been done or taken
in pursuance of the New Act. Thus, a deeming fiction is introduced so far
as action taken under the repealed Act is concerned.

10. Sub-section 2 of Section 30 keeps the application of Section 6 of the
GC Act intact and if a situation is not covered by Section 30, resort to
Section 6 of the GC Act is open. Section 6 of the GC Act reads thus:

“6. Effect of repeal:- Where this Act, or any Central Act or
Regulation made after the commencement of this Act, repeals any
enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not –
a) revive anything not in force or existing at the time at
which the repeal takes effect; or
b) affect the previous operation of any enactment so repealed
or anything duly done or suffered thereunder; or

c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or

d) affect any penalty, forfeiture or punishment incurred in
respect of any offence committed against any enactment so
repealed; or

e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as aforesaid,

 
and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation had
not been passed.”
11. In this connection, we may usefully refer to the decision of this
court in Bansidhar & Ors. V. State of Rajasthan & Ors.[3] where this
court was dealing with the question whether the proceedings for fixation of
ceiling area with reference to the appointed date i.e. 1/4/1966 under
Chapter III-B of the Rajasthan Tenancy Act, 1955 could be initiated and
continued after coming into force of the Rajasthan Imposition of Ceiling on
Agricultural Holdings Act which with effect from 1/1/1973 repealed Section
5(6-A) and Chapter III-B of the Rajasthan Tenancy Act, 1955. While dealing
with this question, this court observed that when there is a repeal of a
statute accompanied by re-enactment of a law on the same subject, the
provisions of the new enactment would have to be looked into not for the
purpose of ascertaining whether the consequences envisaged by Section 6 of
the GC Act ensued or not – but only for the purpose of determining whether
the provisions in the new statute indicate a different intention. This
court further observed that a saving provision in a repealing statute is
not exhaustive of the rights and obligations so saved or the rights that
survive the repeal. This court quoted a paragraph from its judgment in
I.T. Commissioner v. Shah Sadiq & Sons [4] : (SCC p.524, para 15). It
reads thus:

“… In other words whatever rights are expressly saved by the ‘savings’
provision stand saved. But, that does not mean that rights which are
not saved by the ‘savings’ provision are extinguished or stand ipso
facto terminated by the mere fact that a new statute repealing the old
statute is enacted. Rights which have accrued are saved unless they
are taken away expressly. This is the principle behind Section 6(c),
General Clauses Act, 1897. …”

12. Thus assuming the proceedings under the Act of 1947 initiated against
the appellants cannot be saved by Section 30(2) of the New Act because no
action was taken pursuant to the Act of 1947, prior to coming into force of
the New Act, saving clause contained in Section 30 is not exhaustive.
Section 6 of the GC Act can still save the proceedings.

13. Viewed from this angle, clauses (c) and (e) of Section 6 of the GC
Act become relevant for the present case. Sub-clause (c) says that if any
Central Act repeals any enactment, the repeal shall not affect any right,
privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed. In this case, the right which had accrued to the
investigating agency to investigate the crime which took place prior to the
coming into force of the New Act and which was covered by the Act of 1947
remained, unaffected by reason of clause (c) of Section 6. Clause (e) says
that the repeal shall not affect any investigation, legal proceeding or
remedy in respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment and Section 6 further states that any
such investigation, legal proceeding or remedy may be instituted, continued
or enforced and such penalty, forfeiture or punishment may be imposed as if
the repealing Act had not been passed. Therefore, the right of C.B.I. to
investigate the crime, institute proceedings and prosecute the appellants
is saved and not affected by the repeal of Act of 1947. That is to say,
the right to investigate and the corresponding liability incurred are
saved. Section 6 of the GC Act qualifies the effect of repeal stated
in sub-clauses (a) to (e) by the words ‘unless a different intention
appears’. Different intention must appear in the repealing Act
(See Bansidhar). If the repealing Act discloses a different intention,
the repeal shall not result in situations stated in sub-clauses (a) to (e).
No different intention is disclosed in the provisions of the New Act to
hold that repeal of the Act of 1947 affects the right of the investigating
agency to investigate offences which are covered by the Act of 1947 or that
it prevents the investigating agency from proceeding with the investigation
and prosecuting the accused for offences under the Act of 1947. In our
opinion, therefore, the repeal of the Act of 1947 does not vitiate or
invalidate the criminal case instituted against the appellants and the
consequent conviction of the appellants for offences under the provisions
of the Act of 1947.

14. There is no substance in the contention that the appellants could
not have been charged under the provisions of the Act of 1947 after its
repeal. As we have already noted, the offence is alleged to have been
committed prior to the coming into force of the New Act. When the offence
was committed, the Act of 1947 was in force. It is elementary that no
person shall be convicted of any offence except for violation of a law in
force at the time of commission of the act charged as an offence nor can he
be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence.
Article 20(1) of the Constitution of India is clear on this point. The
appellants were, therefore, rightly charged, tried and convicted under the
provisions of the Act of 1947. We may also note that the provisions of the
New Act are more stringent than the provisions of the Act of 1947. The
appellants cannot, therefore, be said to have been prejudiced.

15. So far as the merits of the case are concerned, in our opinion, the
guilt of the appellants is clearly established and, hence, no interference
is necessary with the impugned judgment of the High Court which has
confirmed the conviction and sentence of the appellants.

16. That takes us to the arguments on quantum of sentence. In Satpal
Kapoor, the appellant therein was charged, inter alia, under Section 5(2)
of the Act of 1947. He was an angina patient, suffering from coronary
diseases requiring medical attention. He was 60 years of age. Considering
these facts, his sentence was reduced to four months’ simple imprisonment.

17. In Shiv Nandan Dixit, the appellants therein were charged, inter
alia, under Section 5(1)(c) read with Section 5(2) of the Act of 1947.
While considering the quantum of sentence, this court took into account the
fact that the incident had taken place nearly 23 years ago. Considering
the fact that the appellants therein had lost their jobs and retiral
benefits; that the prolonged litigation had caused considerable loss to
them and that they had crossed 60 years of age, this court reduced the
sentence of one year RI to a period of six months’ RI.

18. In this case, so far as appellant M.C. Gupta is concerned, he is
about 70 years’ old and is stated to be suffering from various ailments.
The crime in question took place about 24 years ago. In the circumstances,
we are of the opinion that his sentence of two years’ RI for offence under
Section 5(2) read with Section 5(1)(c) of the Act of 1947 should be reduced
to one year’s RI and is accordingly reduced. Rest of the sentences awarded
to him shall remain intact. So far as appellant Mohan Lal Gupta is
concerned, he has been sentenced to one year’s RI for offence under Section
5(2) read with Section 5(1)(c) of the Act of 1947. Considering the fact
that he was the beneficiary of the dishonest and fraudulent
misappropriation of the Company’s money, we are not inclined to reduce his
sentence. We clarify that the sentence of fine imposed on both the
appellants is confirmed. The appeals are disposed of in the aforestated
terms.

……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)

NEW DELHI,
AUGUST 31, 2012.

———————–
[1] (1996) 11 SCC 769
[2] (2003) 12 SCC 636
[3] (1989) 2 SCC 557
[4] (1987) 3 SCC 516

———————–
16

 

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