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Registrar of Companies Vs. Utkal Distributors Private Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 195 of 1974
Judge
Reported in[1978]48CompCas106(Orissa)
ActsCompanies Act, 1956 - Sections 159(1), 159(2), 162, 162(1), 166 and 168
AppellantRegistrar of Companies
RespondentUtkal Distributors Private Ltd. and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateK.C. Mohanty and ;R.Ch. Mohanty, Advs.
Cases Referred(Orissa) (Registrar of Companies v. Utkal Distributors Pot. Ltd.) Justice Mohanti
Excerpt:
.....and the operative portion of the order runs thus :the respondents 1, 2 and 4 failed to submit the annual return with the registrar by that date and, therefore, they were in default from november 30, 1969, up to the date of decision of trail court, i. in my opinion, the default continues at best for 15 months as per the provisions of section 166 of the act which lays down that every company shall in each year hold in addition to any other meetings a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it ;and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next. , we must hold that the judgment of acquittal is bad and whether an annual genera] meeting was held or..........the act, the company and its directors had the statutory obligation to file with the registrar an annual return in the prescribed form made up to the date of the annual general meeting. the annual general meeting of the year 1971 . was to be held on or before the 30th of september, 1971, and the return had to be filed before the registrar on or before november 29, 1971, as provided under section 159(1) of the act. the registrar served notice on the officers of the company asking for compliance, but there has been default and such default has continued from 30th of november, 1971, till the date of complaint, i.e., 30th may, 1972. the default thus continued up to the date of complaint covering a total period of 182 days.3. the defence plea was that the company became defunct from 1968 ;.....
Judgment:

R.N. Misra, J.

1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973, directed against the judgment of acquittal passed by a learned Magistrate acquitting the respondents of an offence punishable under Section 162(1) of the Companies Act, 1956 (hereinafter referred to as 'the Act').

2. Complaint was laid by the Registrar of Companies on the allegation that the Utkal Distributors Private Ltd. was incorporated as a company under the Indian Companies Act of 1913, on April 28, 1948, and is an existing company as denned under Section 3(1)(ii) of the Act. Under Section 159 of the Act, the company and its directors had the statutory obligation to file with the Registrar an annual return in the prescribed form made up to the date of the annual general meeting. The annual general meeting of the year 1971 . was to be held on or before the 30th of September, 1971, and the return had to be filed before the Registrar on or before November 29, 1971, as provided under Section 159(1) of the Act. The Registrar served notice on the officers of the company asking for compliance, but there has been default and such default has continued from 30th of November, 1971, till the date of complaint, i.e., 30th May, 1972. The default thus continued up to the date of complaint covering a total period of 182 days.

3. The defence plea was that the company became defunct from 1968 ; the employees of the company left service ; records of the company were seized by the C.B.I. and in spite of attempts, no meeting of the board of directors or the annual general meeting could be held.

4. Prosecution examined one witness and two witnesses were examined on behalf of the defence. The learned Magistrate recorded an order of acquittal by holding :

' According to Section 159 of the Companies Act the returns are to be prepared and filed with the Registrar within sixty days from the date on which each of the annual general meetings referred to in Section 166 is held. Therefore, the filing of the annual returns is dependent upon the holding of the annual general meeting. If there will be no annual general meeting then it is not possible for the directors and the company to prepare and file the returns with the Registrar. Not holding of the annual general meeting is an offence punishable under Section 168 of the Act. The prosecution has failed to say if there was any such annual general meeting. Under the circumstances the accused persons cannot be held guilty under Section 162(1) for not filing the annual returns with the Registrar of Companies.'

5. The judgment of acquittal passed by the learned Magistrate upon this reasoning is assailed in appeal.

6. When this appeal came up for hearing before our learned brother. Panda J., he directed the appeal to be heard by a Division Bench with the following observation :

' That in the relevant year, i.e., 1971, there was no annual general meeting as contemplated under Section 166 of the Act is not in dispute. The short point for consideration was if in consequence of not holding the annual general meeting a company is unable to place before it the annual return whether such a company would be liable under Section 162(1) of the Act or not. In this case, the plea of the respondents was that as the accounts had been seized by the C.B.I. in 1967, the managing director had resigned since 1967, and the directors were noticed to attend the annual general meeting in 1967, but they did not turn up, the annual return could not be prepared and produced and thereafter submitted to the Registrar within 60 days as required under Section 159(1) of the Act. The learned lower court held that the filing of the annual return is dependent upon the holding of the annual general meeting. Therefore, if there is no annual general meeting it is not possible for the directors and the company to prepare and file the return either before the annual general meeting or send the same to the Registrar subsequently. He further held that not holding of the annual general meeting is a different offence punishable under Section 168 of the Act.

The learned lower court seems to have missed the point. Under Section 159(2) of the Act it is provided thus :

The said return shall be in the Form set out in Part II of Schedule V or as near thereto as circumstances admit and where the return is filed even though the annual general meeting has not been held on or before the latest day by which it should have been held in accordance with the provisions of this Act, the company shall file with the return a statement specifying the reasons for not holding the annual general meeting.' So in this case non-submission of the return within 60 days as required under Section 159(1) is;an independent offence which makes the respondents liable under Section 162(1) of the Act. The point that obsesses me is the quantum of punishment. In an earlier case against these accused persons for the year 1969 they have been found guilty and the operative portion of the order runs thus :

The respondents 1, 2 and 4 failed to submit the annual return with the Registrar by that date and, therefore, they were in default from November 30, 1969, up to the date of decision of trail court, i.e., September 5, 1973. The result, therefore, is that the appeal is allowed and the order of acquittal passed against the respondents is set aside. Respondents 1, 2 and 4 are convicted under Section 162 of the Act and each of them is sentenced to pay a fine of Re. 0'50 for every day during the period from November 30, 1969, to September 5, 1973.....'

The company is to hold the annual general meeting every year. If in the said annual general meeting the annual return has not been filed for that year, that cannot be filed after the year lapses. On the expiry of any calendar year, the possibility of having the annual general meeting for that year vanishes arid thereafter the liability to have the general meeting of the subsequent year arises within the stipulated time. In the case of this company for an earlier period reported in [1975] 41 CLT 1356; [1978] 48 Comp Cas 106, 110 (Orissa) (Registrar of Companies v. Utkal Distributors Pot. Ltd.) Justice Mohanti has passed the order quoted above. Therein the liability to pay the fine has been from November 30, 1969, to September 5, 1973. Evidently November 29, 1969, was the last date by which the annual return of that year, i.e., 1969, should have been filed before the Registrar. So he has fixed the liability from November 30, 1969. The second date, i.e., September 5, 1973, is the date when the trial court acquitted the accused persons. The question that arises is whether beyond one year this fine could be imposed. In my opinion, the default continues at best for 15 months as per the provisions of Section 166 of the Act which lays down that every company shall in each year hold in addition to any other meetings a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it ; and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next. There is no rationale why the default should continue, as in the reported case, till September 5, 1973, when the S.D.M. delivered the judgment.'

7. The learned single judge has recorded a positive finding that the judgment of acquittal is wrong and unconnected with the holding of the annual general meeting, the company and its officers had the liability to file the return within the appointed time before the Registrar. In fact, holding of an annual general meeting is not a condition precedent to filing of the return before the Registrar. As counsel appearing for the respondents docs not dispute the analysis presented by our learned brother. Panda J., we must hold that the judgment of acquittal is bad and whether an annual genera] meeting was held or not, the respondents must be found to have committed an offence punishable under Section 162 of the Act. We would accordingly reverse the judgment of acquittal.

8. Next comes the question regarding the recurring fine. For convenience, we propose to extract the relevant portions of Sections 159 and 162 of the Act before we proceed to examine the question :

' 159. (1) Every company having a share capital shall, within sixty days from the day on which each of the annual general meetings referred to in Section 166 is held, prepare and file with the Registrar a return containing the particulars specified in Part I of Schedule V, as they stood on that day, regarding--...

(2) The said return shall be in the Form set out in Part II of Schedule V or as near thereto as circumstances admit and where the return is filed even though the annual general meeting has not been held on or before the latest day by which it should have been held in accordance with the provisions of this Act, the company shall file with the return a statement specifying the reasons for not holding the annual general meeting :.....

162. (1) If a company fails to comply with any of the provisions contained in section 159, 160 or 161, 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.....'

9. Section 166 of the Act makes provision for holding of the annual general meeting and such meeting has to be so held that more than fifteen months shall not elapse between the day of one annual general meeting and the other. The Registrar has power to extend the time up to three months for any special reason. Section 162 of the Act making provision for the offence in question provides for the punishment of fine which may extend to rupees fifty for every day during which the default continues. The default in the instant case arises out of the failure to comply with the provisions contained in Section 159 of the Act. As already indicated, the filing of the return is not conditional upon holding of the annual general meeting and compliance is possible even without such, meeting being held provided along with a return a statement specifying the reason for not holding the annual general meeting is also filed. The learned single judge while coming to hold that the offence had been committed rightly relied upon Section 159(2) of the Act, but while coming to deal with the question of punishment referred to, in our view without justification, the holding of the annual general meeting. It is true that the animal general meeting of a particular year can be held within an upper limit of eighteen months as provided in Section 166 of the Act and there would be no scope to hold such a meeting after the lapse of such period and yet treat such meeting as the annual general meeting of that particular year. In our opinion, on the facts of the present case and in view of the provisions in Section 159(2) of the Act, for a consideration of the duration of default, it was not necessary to refer to Section 166 of the Act. Independent of holding of the annual general meeting, there was default and it continued until the return was filed. There was no explanation from the accused persons as to why the return was not filed when the law permitted such return to he filed even without the holding of the annual general meeting.

10. It is a well-known legislative policy to provide for imposition of recurring fine where it is intended that the statutory provision should be followed and the breach should not be permitted to continue. The default in this case is, therefore, unconnected with the holding of the annual general meeting and as long as the default continued the delinquents were liable to be subjected to the recurring punishment.

11. The distinction between the punishment provided under Section 162(1) and Section 168 of the Act may now be brought out. Under Section 162, there is no punishment for the main offence while under Section 168, the punishment provided is a fine which may extend to the tune of Rs. 5,000 and in case of continuing default, there is provision for a recurring fine for every day during which the default continues. For the offence under Section 162 of the Act, therefore, the appropriate punishment has to be only a daily fine for every day during which the default continues. The first default was on November 30, 1971, and had admittedly continued up to the date of complaint as mentioned in paragraph 6 of the prosecution report. P. W. 1 who is an assistant employed in the office of the Registrar of Companies deposed to the effect that the default was not made good till the filing of the complaint and there is no evidence that the default continued beyond the date of filing of the complaint. On the facts of the case, it must, therefore, be held that the default continued for 182 days beginning from November 30, 1971, up to 30th of May, 1972, and on conviction for the offence under Section 162(1) of the Act, each of the respondents is liable to a sentence of fine for the aforesaid period. Keeping the facts of the case in view, we think, imposition of a daily fine of rupee one for these 182 days of default for each of the respondents would meet the ends of justice. Accordingly, we reverse the judgment of acquittal, convict each of the respondents under Section 162(1) of the Companies Act and direct that each of them shall pay a daily fine of rupee one for these 182 days of default as aforesaid, or in default respondents Nos. 2 and 3 shall suffer simple imprisonment for fifteen days each. Out of the fine, if recovered, a sum of rupees two hundred be paid to the Registrar of Companies under Section 626 of the Act for meeting the costs of the proceedings.

Mohanti, J.

12. I agree.


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