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Hanuman Mills Pvt. Ltd. and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAllahabad High Court
Decided On
Case NumberCriminal Revision No. 1060 of 1966
Judge
Reported inAIR1968All604
ActsCompanies Act, 1956 - Sections 159, 303(3), 311 and 611(2); Constitution of India - Article 20(1)
AppellantHanuman Mills Pvt. Ltd. and ors.
RespondentState
Advocates:B.S. Asthana, Adv.
DispositionRevision dismissed
Excerpt:
- - ' officer who is in default 'is defined in section 5 and means any officer of the company who is knowingly guilty of the default, non-compliance, failure, refusal or contravention mentioned in that provision, or who knowingly and wilfully authorises or permits such default, non-compliance, failure, refusal or contravention. 112.50 under section 611(2) of the companies act as additional fee for registration of the change is bad because the said section was added on december 27, 1960, and was not in existence on the date of default and in any event the demand of additional fee is in the nature of penalty and is hit by article 20(1) of the constitution of india, under which no person shall be subjected to a penalty greater than that which might have been inflicted by the law in force..........and ram narain lal was appointed in his place the same day. it was alleged that section 303(2) required the company to send to the registrar information of any change among its directors on a prescribed form within a period of twenty-eight days. the change, according to the prosecution, had to be sent in a form known as form no. 33 on or before january 24, 1961. the said form, however, was presented by the applicants on march 7, 1962, i.e., after a delay of one year, one month and eleven days. as the form was not presented for filing within the statutory period of twenty-eight days, an additional fee of rs. 112.50 payable for the registration was determined and demanded by the registrar under section 611 of the companies act which the applicants did not pay. hence a complaint under.....
Judgment:

J.S. Trivedi, J.

1. A complaint under Section 303 of the Companies Act was filed by the Registrar of Companies with the allegation that on December 27, 1960, Dhamodar Das had resigned from the directorship of the Hanuman Mills Private Ltd., and Ram Narain Lal was appointed in his place the same day. It was alleged that Section 303(2) required the company to send to the Registrar information of any change among its directors on a prescribed form within a period of twenty-eight days. The change, according to the prosecution, had to be sent in a form known as Form No. 33 on or before January 24, 1961. The said form, however, was presented by the applicants on March 7, 1962, i.e., after a delay of one year, one month and eleven days. As the form was not presented for filing within the statutory period of twenty-eight days, an additional fee of Rs. 112.50 payable for the registration was determined and demanded by the Registrar under Section 611 of the Companies Act which the applicants did not pay. Hence a complaint under Section 303 of the Companies Act was filed.

2. The accused pleaded not guilty. The learned City Magistrate, Kanpur, who tried the case found the accused guilty of the charge and fined him at the rate of 50 nP. per day for the period of default, i.e., a total of Rs. 192.38 and in default to undergo simple imprisonment for one month. The two directors, viz., S.S. Agarwal and Ram Narain Lal, were also fined at the same rate.

3. An appeal was then filed by the applicants and the learned Additional District and Sessions Judge, Kanpur, by his order dated March 31, 1966, dismissed the appeal but reduced the fine to Rs. 50 only. He further directed the appellants to pay an additional fee of Rs. 112.50 np. Within a month from the date of the order. This revision is directed against this order of the learned Sessions Judge.

4. The learned counsel appearing for the applicants has contended that, even though no Form No. 33 duly filled was sent to the Registrar, yet the change in the directorate was duly notified with the annual return of the company sent on December 27, 1960, and therefore no default was committed. Section 159 of the Companies Act makes it obligatory for every company to file annual returns giving therein the list of directors, past and present, and other particulars required by the said Section. Non-compliance of Section 159 is punishable under Section 162 with a fine which may extend to Rs. 50 for every day during which the default continues. Section 303(2) casts a duty on the company to furnish duplicate return on the prescribed form of any change in the directors within twenty-eight days of such change and a default in this case is also punishable under Sub-clause (3) which is as under:--

'If default is made in complying with Sub-section (1) or (2), the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees for every day during which the default continues.'

' Officer who is in default ' is defined in Section 5 and means any officer of the company who is knowingly guilty of the default, non-compliance, failure, refusal or contravention mentioned in that provision, or who knowingly and wilfully authorises or permits such default, non-compliance, failure, refusal or contravention.

5. The duty cast under the two sections is a distinct one and is separately punishable. Merely because annual return showing the change in directors is furnished with the annual return under Section 159 of the Act the same cannot, in law, absolve the company from furnishing the information about the change of directors required under Section 303(3). The applicants were thus guilty of non-compliance and liable to penalty under Section 303(3), The learned Magistrate considering all the circumstances of the case imposed a penalty of 50 np. per day only which in appeal has been reduced to a sum of Rs. 50 only and I do not think that the same is in any way unreasonable.

6. It has next been contended that the demand of Rs. 112.50 under Section 611(2) of the Companies Act as additional fee for registration of the change is bad because the said section was added on December 27, 1960, and was not in existence on the date of default and in any event the demand of additional fee is in the nature of penalty and is hit by Article 20(1) of the Constitution of India, under which no person shall be subjected to a penalty greater than that which might have been inflicted by the law in force at the time of the commission of the offence. To attract the prohibition of Article 20(1) of the Constitution of India it has first to be seen whether the nature of the demand contemplated under Section 611(2) is by way of penalty. Section 611 is only a revenue charging section and provides that, in respect of matters mentioned in Schedule X to the Act there shall, subject to the limitation imposed in that Schedule, be paid several fees specified therein. It reads as under :

' (1) In respect of the several matters mentioned in Schedule X, there shall, subject to the limitations imposed by that Schedule, be paid to the Registrar the several fees therein specified :

Provided that no fees shall be charged in respect of the registration in pursuance of Part IX of a company, if it is not registered as a limited company, or if, before its registration as a limited company, the liability of the shareholders was limited by some other Act of Parliament or any other Indian Law or by an Act of Parliament of the United Kingdom, Royal Charter or Letters Patent in force in India :

Provided further that in the case of resolutions to which Section 192 applies, not more than one fee shall be required for the filing of more resolutions than one passed in the same meeting if such resolutions are filed with the Registrar at the same time.

(2) Any document required or authorized by this Act to be filed or registered, or any fact required or authorized by this Act to be registered, with the Registrar on payment of the fee specified therefore, in Schedule X, may, without prejudice to any other liability, be filed or registered after the time, if any, specified in this Act for its filing or registration on payment of such additional fee not exceeding ten times the amount of the fee so specified as the Registrar may determine. '

7. It is not disputed that the applicants, had they applied within the period of twenty-eight days, would not have been liable to an additional fee of Rs. 112.50. The Act, as it stood before December 27, 1960, did not provide for the registration of a change if the change was notified after the period of limitation provided in Section 311. There was, therefore, a lacuna in that Act which was removed by the addition of Clause (2) which, in effect, authorised a person in default to apply even after the period of limitation provided he paid an additional fee not exceeding ten times the initial fee as determined by the Registrar. Article 20(1) of the Constitution deals with prosecution by a court for an offence prescribed in the statute.

8. The demand by the Registrar of the additional fee under Section 611(2) of the Companies Act payable on any document required to be filed after that section came into force is only a revenue demand and is neither a prosecution nor punishment by a court of law for an offence.

9. The other contention of the learned counsel that on the date the default was committed the applicants were not liable to pay any additional fee has also no force because the additional fee charged under Section 611(2) is payable under the Act on any document required to be filed after the section came into force and, therefore, the applicants were liable, on the date they applied for the registration of a change of directors, to pay an additional fee that was in force on that date.

10. The prosecution of the applicants was under Section 303(3) of the Companies Act for not notifying the change in the directorate and not for nonpayment of the additional fee demanded under Section 611(2) of the Act.

11. The result, therefore, is that this revision has no force and is accordingly dismissed.


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