Taxability of 'Intangibles' Under Sales Tax

(By K.P. Pradeep, Advocate, High Court of Kerala)

The ever-large debates on tax avoidance in trade resulted the 46th Amendment to the Constitution of India, which amended the definition clause in Art.366 by the injection of C1.29A. C1.29A happen to be the part of the Constitution, right from the year 1982 widening the definition of sale irrespective of its traditional meaning approved in the Sale of Goods Act, 1930.

Even from the ancient days of our country, sale of goods by the trade community is one of the major revenue sources of the 'State'. The Parliament, with 46th Amendment to the Constitution, had sheltered the State's interest in revenue enhancement, by way of expanding the ambit of "sale", which was hardly curtailed in the celebrated decision of the Apex Court in Gannon Dunkerly Case ((1958) 9 STC 353 (SC).

Nevertheless a mere Constitutional guarantee could not resolve the problems of tax avoidance. The issues again appear for discussions, when the trade community tries to avoid the tax on transactions of intangible property and benefits, stating that these intangible properties and benefits does not appear the features of the "goods" as defined or under common parlance. The term goods defined in the Constitution as "goods" includes all materials, commodities and articles (Art. 366 (12) of the Constitution of India). In its wider meaning the goods are described as everything that is capable of ownership1. As well, anything, material or immaterial, which can satisfy the human needs, is treated as goods in economic parlance2.

Goods or commodity is interchangeable terms denote an article of trade, a movable article of value, something that can buy and sell3. A sale of movable property is subject to taxation if the property is transferred from the seller to buyer in the course of trade or business for cash or deferred payment or for other valuable consideration. It denotes every transfer of movable property is an incident of taxation under Sates Tax or Value Added Tax. Further it was explained that properties, which are capable of being abstracted, consumed and used, transmitted, transferred, delivered, stored or possessed, are goods for the purpose of sales tax4.

The property is defined as 'things and rights considered as having a money value'5. The extended meaning of the term 'property' is that 'every species of valuable right and interest'. It includes everything that subject to ownership6 and has an exchangeable value or which goes to make up wealth or estate irrespective of its nature that corporeal or incorporeal, tangible or intangible, visible or invisible or real or personal7.

The property in its larger import signifies things and rights as having money value, especially with reference to transfer or succession, which includes the rights such as trademarks and patents and other rights in rem8. An incorporeal right of copy right, intangible thing of electric energy9 and a mere chance for a prize or a right and beneficial interest to participate in a draw10 are treated as property of which its transfer is exigible to the levy of tax under respective sales tax statutes.

Yet, an interesting aspect is that whether the gas or steam is tangible or intangible property. Of course the gas supplied in the containers or cylinders is an article of merchandise subject to taxation, however cannot be considered as tangible property in its real form. However, steam is held to be as tangible property subject to levy of sales tax, as 'it is visible and it has weight and it can be felt at any rate to the detriment of the person venturing to feel it'11.

Differing from the above views, it was urged that transfer of technical know how will not subject to taxability12. Further, the technical know how is in the forms of drawings and designs, though for valuable consideration in the money form or not, is only constituted ideas, is an intangible property and not goods. However rejecting the above contention, the Apex Court held that at the moment the information or advice is put in media, whether paper or diskettes or in any other thing, and sold in lieu of money, the things become a chattel, exigible to tax13. The verdict is very obvious to say that the intellectual input is not free from taxation if it transferred to others in a commercial transaction by acquiring its value.

A series of instructions issued to the hardware of a computer enabling its performance, namely software, is nothing but an intangible thing, but certainly sold to the customers, housed in a tangible media such as floppy disk or CD ROM. Such encoded instructions and designed programs are perfectly goods14. Apparently an intellectual property when it is put on a media becomes goods.

In the strict interpretation of taxing statutes, the tangibility or intangibility of a thing is not a relevant criterion for the purpose of levying tax on the transaction of such things. In the taxing statutes of our country, the test to determine a property as 'goods' for purposes of sales tax is not whether the property is tangible or intangible or incorporeal15. The Apex Court invented the test is whether the thing is capable of abstraction, consumption and use and whether it can be transmitted, transferred, delivered, stored or possessed16 irrespective of its tangibility or intangibility.

When the cases on the subject of the sale element in mobile services and supply of SIM cards to the customers came up for consideration, the large stress was on the contention that passing of intangible benefit cannot be treated as sale but only services17. Though the supply of prepaid SIM cards is held as sale, the transfer of facilities and intangible right to use the wireless routes for the post paid customers are untouched by the Courts. If the capability test invented by the Apex Court is functional, the transfer of right to use the mobile route by the post-paid customers, though it is intangible property of the mobile service providers, is necessarily a sale with valuable consideration. Consequently, the transfer of right to use the cyber ways to a customer, by an Internet service provider, is nothing but a transfer of right to use an intangible benefit, amounts to sale, as maintained by the capability test.

Though the supply of branded software in corporeal forms are held to be sale, in case of unbranded software, indeed the same is an intellectual property satisfying the test of capability, but a product of service contract amenable to works contract tax. This issue is left open in the celebrated decision in Tata Consultancy18

A music composed is definitely an intellectual work by the artistry of a musician by itself is not a good for sale, on the other hand when the same is hosted in media of disc or cassette, become a readily mercantile commodity having the characteristics of property exigible to tax. A blank cassette, of course, is an article of merchandise. When an intellectual work of music is recorded in the blank cassette, a corporeal media, there is a value addition in the post recorded cassette and the value of the intangible artistry work is subjected to taxation, as held by the Apex Court in Gramaphone Co. 's case19.

Whether a license is tangible or intangible is widely discussed in various case laws particularly with reference to the replenishment license. The Court ruled out the contention that the license has no physical existence however is a bundle of fights. The Court held that the right of privileges of entitlement of any right conferred by a license is crystallised or incorporated in a physical document, hence has a corporeal existence, thus taxable as an article of merchandise20.

As a consequence, the current position is that the physical existence of property or any beneficial rights is immaterial to attract the levy of tax. It is every article of merchandise, even otherwise not excluded from the taxation, is subjected to sales tax. An article of merchandise whenever used in a taxation statute must always be understood in common parlance and must be given its popular sense, means the sense with which people are conversant and while dealing with the articles would attribute to it.21

The judicial wisdom is a matter of random transformations. In the fifties of last century the Judiciary was very keen in restraining the 'meadow of commodity taxation', with strict interpretation of terms as per the traditional trade meanings. That is why, in Rameshwar Jute Mills22, the Court without any hesitation held that the transfer of quota of 'loom hours' by members of Jute Mills Association, to other member mills is not a sale, but only transfer of abstract rights of intangible incorporeal property. However the Courts in current times is more conscience to sanctify the wider scope of tax incidence. The Legislature is also keen to elucidate the new areas to enlarge the tax revenue. Consequently, the new value added legislation has included all intangible goods23 under the purview of VAT.

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Foot Note:

1. Mohamed Kabir v. Government, 15 Deccan L.R. 60, cited in Nizam Sugar Factory Ltd. v. Commissioner of Sales Tax, 8 STC 61 at p. 67

2. Nizam Sugar Factory Ltd. v. Commissioner of Sales Tax, 8 STC 61 at p. 68

3. U.S. v. Sischo, D.C. Wash. 226 F. 1001 quoted in " Words and Phrases", Volume 7A, Permanent Edition at page 590.

4. Commissioner of Sales Tax v. Madhya Pradesh Electricity Board, (1969) 1 SCC 200

5. Vikas Sales Corporation v. Commissioner of Commercial Taxes, AIR 1996 SC 2082. 4

6. Hoffmann v. Kinealy, 389 S.W. 2d. 745

7. Labberton v. General Gas Co. of Americia, 53 Wash.2d 180.

8. See Black's Law Dictionary, 6 Edn. 1990.

9. Commissioner of Sales Tax v. Madhya Pradesh Electricity Board, (1969) 1 SCC 200, also in 25 STC 188, See County of Durham Electrical Co. v. Commissioner of Inland Revenue, (1909) 2 KB 604. See also State of Andhra Pradesh v. NTPC Ltd, (2002) 5 SCC 203.

10H. Anraj v. State of Tamil Nadu (1986) 61 STC 165. This ratio was doubted in Sunrise Associates v. Government of NCT of Delhi, (2000) 10 SCC 420 and referred to Larger Bench.

11. Nizam Sugar Factory Ltd. v. Commissioner of Sales Tax, 8 STC 61 at p. 69.

12. See the arguments in Associated Cement Companies Ltd. v. Commissioner of Customs, (2001) 4 SCC 593.

13Associated Cement Companies Ltd v. Commissioner of Customs, (2001) 4 SCC 593, para 33.

14. St. Albans City and District Council v. international Computers Ltd, (1996) 4 All. E.R. 481 at 493.

15. Tata Consultancy Services v. State of Andhra Pradesh, 2005 (1) KLT SN 13 (C.No.15) SC= (2004) 137 STC 620 at p 633.

16. Ibid.

17. Escotel Mobile Communications Ltd v. Union of India & Ors., 2002 (2) KLT SN  22 (C.No. 24)=-(2002) 10 KTR 318 (Ker.)

18Tata Consultancy Services v. State of Andhra Pradesh, 2005 (1) KLT SN 13 (C.No.15) SC= (2004) 137 STC 620 at p 633.

19. Gramaphone Co. of India Ltd v. Collector of Customs, JT 1999 (9) SC 275.

20. P.S. Apparels v. Deputy Commercial Tax Officer, 94 STC 139 (Mad.), Vikas Sales Corporation v. Commissioner of Commercial Taxes, AIR 1996 SC 2082.

21. Parle Biscuits (P) Ltd v. State of Bihar and Others, [2005] 139 STC 204 at p. 214.

22. State of Bihar v. Rameshwar Jute Mills, (1953) 4 STC 182 at p. 185 (Patna)

23. Item 3 of the Third Schedule to the Kerala Value Added Tax, 2003 covers all intangible goods like Copyright, Patent, REP License, DEPB License etc. to levy VAT at the rate of 4%.

Anz Grindlays Bank Ltd v. Directorate Of Enforcement (2005 (2) KLT 876 (SC) : Is It a Good Law In Prosecuting And Punishing Companies?

(By John Vadassery, Advocate, Ernakulam)

Now, by Supreme Court judgment in the captioned case, companies can be prosecuted even for those offences for which the sentence of imprisonment is a mandatory punishment. A radical departure from the hitherto existing concept, which did not allow to do so. The reason was simple: a company cannot be imprisoned as in the case of a natural person. However, it was always being remained as subject of academic and judicial discussion whether the present law can be applied to the extent to prosecute a company - as artificial person - for all offences, which it is capable of doing. The majority view of the Constitution Bench in this case gives an afirmative answer to the moot question with the aid of "statutory construction". It says that legislative intention is always to prosecute and punish any "person" - both natural & artificial person - for any offence. Where "imprisonment and fine" has been prescribed as sentence for an offence it has to be construed as "imprisonment or fine" and in the case of companies, fine shall be imposed on them by way of punishment in lieu of imprisonment.

Could the judgment make a settled position of law?

The concept of corporate personality got first time recognition in the famous Salomon v. Salomon & Co. Ltd case ((1897) AC 22). The offshoot of this legal recognition was that the companies started to be considered as an effective commercial vehicle for the rapid economic development of the countries. In the present era of W.T.O. regime, the corporate entities not only influences the economic dimensions of societal life but influences the social, political, cultural and religious dimensions of societal life too. The implication is that the impact of the activities of natural person and artificial person on the society getting more convergent. Hence, should natural person as well as artificial person be subjected to same magnitude of punishment for the same offence?

Conventional wisdom always relates offences to individuals. Such a relation is not being adequately recognized in the case of artificial persons. That is why, even if a particular punishment is prescribed for the wrong done by a company, such a prescription seems to have drafted in the same "Psychological Mind Set" which prescribes punishment for individuals. In result, there is no unique provision in Indian penal laws that are exclusively applicable to companies taking into account their separate existence.

Can same magnitude of punishment for the same offence been sured if the penal provisions, originally drafted giving prime concern for natural persons (human beings), applied to artificial person?

Like majority in the case (3-2), the minority also observed that legislative intention is always to prosecute and punish a 'person' for any offence. However, the minority view is that construing "imprisonment and fine" as "imprisonment fine" virtually amounts to rewriting of a penal section. They doubt its uniform application in all situations that may arise. Hence they feel it to have an altogether new set of penal provisions applicable to companies. In support of this fact, they notice the legislations in countries such as France, Australia, Netherlands etc.

The opinion of minority seems more logical and consistent with earlier decision of judiciary ((2003) 11 SCC 405). But the idea is not novel. Besides judiciary, Law Commission had brought the notice of the Legislature for the need of having a different set of penal provisions for companies. But the Legislature remains hesitant to bring changes in law ignoring the identity and relevance assumed by the companies over the years since the days of Salomon. As a corollary to it, now judiciary has been compelled to act upon the issue at hand with the aid of statutory construction. But, does the decision really provide dynamism to law? Can the penal provisions originally drafted for individuals perfectly be twisted to suit to punish offender companies for all offences and in all situations to come? Does the decision further the concept of "equality" as enshrined in Article 14 of the Constitution?

The discussion on the subject is to continue.

Senior Counsel Strutting Like a Peacock Whether

 a Model to be Emulated?

(N. Dharmadan, Sr. Counsel, High Court of Kerala)

A lawyer by virtue of his position, as an officer of the Court having public and professional responsibilities, belongs to the privileged class. He is not only rendering assistance to the Court in the administration of justice but also giving professional service and advice, for which he is entitled to be paid. Lawyers are agents not of the man that pays them; but are acting in administration of justice and they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. He is in fact a "connecting link between the community and administration"'1. If he fails to act with reasonable care and caution, he is unfit to enjoy the privileges conferred upon him by law and serious breaches will be visited with punishment(AIR 1924 All.258).

S.16 of the Advocates Act creates two classes of advocates, namely, Senior advocate and other advocates like the English Bar, which is divided into two ranks (i) Queens Counsel, who are called leading counsels and (ii) Barristers, who are called Junior Counsels2. S.23 of the Act provides for a right of "pre-audience" for Senior Advocates among others. They are wearing what is described as the Queens Counsel, (QC) gown, short coat or jacket decorated with frills and fineries to make out a different class of advocate.

But the rules in Chapter IV under S.49(1)(gg) of the Act, do not provide for any difference in dress. Advocates other than lady advocate shall wear.

(a)  “A black buttoned up coat, chapkan, achkan, black sherwani and white bands with Advocates Gown, or

(b)  A black open breast coat, white collar stiff or soft, and white bands with Advocate Gowns. In either case long trousers (white, black striped or grey) or Dhoti".

So the Advocates Act and the rules only prescribe a common dress for all advocates, no different dress for a senior advocate than that for an advocate. But even before the Advocates Act came into force, the senior advocates have been following the long standing practice of wearing a gown and coat similar to that of a QC3.

Under the existing rules there is no justification for a Senior Advocate to wear a gown different from the normal gown worn by all others advocates. However, the wearing of a gown with its overflowing arms, back flap, embroidery and frills place the Senior Advocate in a distinct advantageous position because it creates an impression among the clients and general public that the Senior Advocates are superior and get better and favourable treatment from the Courts. In fact some Senior Advocates often capitalize this position for getting priority in hearing, postings, adjournments etc. Some are strutting like a Peacock.

Of course Senior Advocates constitute a "different class" within the advocates. Rules framed under S.16(3) and S.49(1)(g) of the Act impose certain restrictions in the matter of their practice of profession of law. The Supreme Court also in exercise of the powers conferred by Art.145 of the Constitution of India framed similar Rules known as Supreme Court Rules, 1966. Broadly speaking the restrictions are that a Senior Advocate shall not file a vakalath or act in any court or Tribunal in India, appear without an advocate on record, accept instructions to draw pleading or affidavit etc., accept directly from a client any brief or instruction etc.

They can enjoy a right of "pre-audience" as provided in S.23 of the Act. The right of "preaudience" in S.23 has been explained by Allahabad High Court as the right of advocates inter-se priority and "pre-audience" among them on the basis of seniority with special reference to Attorney General, Solicitor General, Advocate General, Senior Advocate, Other Advocates etc. This section does not create a bar on a junior advocate to conduct a case where circumstances warrant i.e., when no other advocate is present to conduct the case on behalf of the client. In fact this is a matter to be settled among advocate themselves and the Judge hearing the case normally exercises the discretion. It is the practice in the Chancery Division of the High Court to hear unlisted motions "according to the seniority of the counsel as at present irrespective of the seniority or juniority of the counsel" ((1980) 2 All.E.R.750). There are certain Rules in England governing the precedence or pre-audience of Barristers when appearing in Courts. These Rules are a matter of discretion of the Bench and the etiquette of the profession" ((1998) AC 247).

According to me the right to "pre-audience" has no great significance when compared with the duties and responsibilities of a Senior Counsel by virtue of the "pre-eminence" which he enjoys in the profession. A level headed reasonable senior counsel would never give importance to the right of his "pre-audience" in courts particularly when it is more akin to the prerogative of the Courts controlled by judicious discretion, etiquette and good manners.

A Senior Counsel carry greater responsibilities to the Court and duties to the client. "He should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the Court room" and maintain strict fiduciary relations with his clients under all circumstances. He must act as a "model to the juniors" of the profession. Lord Denning M.R. in Rondel v. W ((1966) 3 All. E.R. 657) said "He (a senior counsel) has time and again to choose between his duty to the client and his duty to court. This is a conflict often difficult to resolve......He puts his first duty to the Court, he has nothing to fear. He must disregard the most specific instruction of his client, if the conflict with his duty to the Court. If he breaks it, he is offending against the rules of profession , and is subject to its discipline..........."

Lord Reid in Rondel v. Worsley ((1967) All. E.R. 993) stressed the duties of a Senior as follows:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court".

xxx                                    xxx                                         xxx

As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his persona interests".

Following the above decisions the Apex Court held in E.S. Reddi v. Chief Secretary. AP. (1987 (2) KLJ 17 (SC) (SN)) held:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position skin to a Queen's Counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience".

It has been held by the Full Bench of Allahabad High Court in Democratic Bar Association v. High Court of Allahabad, (AIR 2000 All. 300) that "it is expected of an advocate desirous of being designated as Senior that he is aware of the restrictions, responsibilities, duties etc. under the rules framed by the High Court". This legal presumption provokes me to think aloud that any ‘exhortation'/’invocation’ to the designated seniors to remind them of the above would be ‘irritating to Mrs. Grundi’.

The legal profession is noble, but its nobility is disintegrating. It is due to the behaviour and attitude of the present day lawyers. The major qualities like honesty, integrity and sincerity have been only secondary importance. Lawyers now indiscriminately indulge in various tactics and activities unconnected with their avocation for private gain. Whatever may be the reason, the fact remains that there is an irredeemable down fall in the prestige of the profession. I feel that if the Seniors start strutting like a Peacock for catching the eye of the Judge with the object of getting preference or preaudience it can never be a model to be emulated particularly when the Supreme Court in In re Sanju v. Datta case ((1995) 3 SCC 619.) observed "that the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour".

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Foot Note

1. Prof. Brabanti — The Role of Lawyers in Developing Countries "American BarAssocia:. Journal, January 1972 Vol. 58.

2. Halsbury's Laws of England 4th Edn. Vol. 3, para 1128.

3. The Delhi High Court rejected the attack against the use of different dress by Seniors and other Advocates. AIR 2002 Delhi 482.

An Appraisal to Praveen v. Ismail- 2005 (1) KLT 559

(By G. Krishna Kumar, Advocate, Ernakulam)

This article is intended only to share my thoughts on the decision rendered by the Honourable High Court of Kerala in Praveen v. Ismail 2005 (1) KLT 559 wherein it was held that provision for condoning the delay in filing the complaint as per N.I. Amendment Act cannot be invoked in a case where order of acquittal was in the year 1999, before the coming into force of the Amendment Act even though the Appeal was heard by the Court after the amendment Act came into force.

The Appellant/Complainant in the above said case contented that the Negotiable Instruments Amendment Act, 2002 is applicable to pending proceedings as well, in view of the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society v. Swaraj Developers (2003 (2) KLT 503 (SC)). The Honourable Supreme Court in Sivasakthi Housing Co-operative Society case (Supra) held that amendment to the procedural laws shall have retrospective effect and is equally applicable to pending proceedings unless otherwise specifically provided in the Act.

The Honourable High Court declined to apply the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society case (supra) for the main reason that the case in hand is a case where the accused has a vested right because of the acquittal based on the law then in force.

Furthermore, the Court appreciated the fact that the Appeal was filed in June 1999. Amendment Act came into force on 6.2.2002. The Court could have disposed of the appeal before the Amendment Act came into force and due to pressure of work, the appeal was happened to be heard only in 2004. So accused can't be put into prejudice due to such delay.

According to me the decision rendered by the High Court speaking through his Lordship Justice K.A. Abdul Gafoor in the above case is a silver lining in the criminal jurisprudence.

Apart from the reason stated by the High Court, the above decision involves following legal aspects which will come to the rescue of the accused in the instant case.

First point is that the decision rendered by the Apex Court in Shivasakthi Housing Cooperative Society's (supra) case is not at all relevant in this case. That was a case wherein applicability of re visional powers of High Court u/S.115 of the CPC was considered. The Apex Court held that revision is only a procedure so change of law during pendency of proceeding is having retrospective effect and is applicable to pending proceedings unless otherwise specifically provided in the statute.

It is settled law that no party in a lis can claim that particular procedure to be followed in his case. While pendency of a matter, if a procedural law is amended it is having retrospective effect and the amended provision shall apply to pending matter. The defence of limitation is one of the defence available to a party in a lis. That means limitation is one of the right to defence available to a litigant. Enlarging or reducing limitation period is not a mere procedure. It affects the right of a party. If that be so, any amendment which affects' right of a party shall have only prospective effect unless there is contra indication in the Amended statute. Hence the law which affects right of a party shall be the law at the time of institution of proceedings unless otherwise specifically provided in the Amendment Act. The Court of Appeal in Lewis v. Lewis (1984) (3) WLR 45), relying on it's earlier decision (Yew Ben Tew v. Kenderaan Bas Mara, (1983) 1 AC 553) held that right to claim limitation is a right and not a procedure. The Apex Court in Lachchmandas Arora v. Ganesh Lai ((1999) 8 SCC 532) held that law of limitation has to be applied with all its rigor when statute so prescribes.

The next point is that an accused in a criminal case is entitled to constitutional safeguard provided to him under Article 20(1) of the Constitution. Art 20(1) of the Constitution which provides safeguard to an accused in a criminal case reads as follows.

"Art 20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence."

The first part of clause (1) of Art. 20 provides that "No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence."

The Apex Court in Chief Inspector of Mines v. K.C. Thapper (AIR 1961 SC 883) held that if an act is not an offence on the date of its commission it cannot be an offence at the date subsequent to its commission. The Honourable Kerala High Court in Pareed Lubha v. Nilambaram (AIR 1967 Ker. 155) held that if the non-payment of the Panchayath tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently even jf it covered older dues.

Before the N.I. Amendment Act came into force, after the lapse of statutory period, the complaint u/S.142 is barred and the limitation cannot be enlarged by way of condonation of delay. As per the Amendment Act, even after the lapse of statutory period, on sufficient ground the court can condone the delay in institution of complaint. In the present case, acquittal by the trial court was as early in June 1999 for the reason that the complaint is time barred. As per the law then in force statutory period for instituting complaint cannot be extended by condonation of delay. So an accused cannot be convicted on a time barred complaint as per the law in force at the time of initiation of the complaint. Change of law granting power to extent statutory period for filing complaint, came into force only at the time of pendency of Appeal. In view of the Constitutional safeguard provided to an accused u/Art.20(1) of the Constitution, he cannot be convicted in such circumstance.

So in my humble view, on the above mentioned legal aspects also, the decision rendered by the Honourable High Court in Praveen v. Ismail, 2005 (1) KLT 559 is good law.