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Registrar of Companies Vs. Orissa Paper Products Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 13 of 1981
Judge
Reported in60(1985)CLT524; 1985(II)OLR473
ActsCompanies Act, 1956 - Sections 220(3); Companies (Amendment) Act, 1977 - Sections 220
AppellantRegistrar of Companies
RespondentOrissa Paper Products Ltd. and ors.
Appellant AdvocateStanding Counsel (Central)
Respondent AdvocateN.C. Pati, ;A.K. Nanda and ;B.N. Misra, Advs.
DispositionAppeal allowed
Cases ReferredUnited Savings and Finance Co. P. Ltd. v. Deputy Chief Officer
Excerpt:
.....by section 162 for a default in complying with the provisions of sections 159, 160 or 161.'4. the balance-sheet of this company and its profit and loss account for the year ending on june 30, 1977, were required to be laid before the annual general meeting within six months as provided in section 210, i. this has been clearly laid down in the division bench decision of this court in vulcan industries p. 5. meaning of 'officer who is in default'.for the purposes of any provision in this act which enacts that an officer of the company who is in default shall be liable to any punishment or penalty, whether by way of imprisonment, fine or otherwise, the expression 'officer who is in default' means any officer of the company who is knowingly guilty of the default, non-compliance, failure,..........a company incorporated on may 30, 1969, under the act. for the year ending on june 30, 1977, the balance-sheet of the company and its profit and loss account were not filed with the registrar of companies, orissa, as required under section 220(3) of the act. therefore, the registrar issued notice no. ps/d/523/2170(5), dated september 13, 1978, by registered post separately to the company and its four directors, namely, (i) himansu sekhar misra (accused no. 2), (ii) bhimasen misra (accused no. 3), (iii) balakrushna sarangi (accused no. 4) and (iv) mehboob khan. the notice having no effect, the registrar of companies filed a complaint on july 6, 1979, in the court of the sub-divisional judicial magistrate, sadar, cuttack, against the company and its directors, namely, himansu sekhar.....
Judgment:

S.C. Mohapatra, J.

1. This is an appeal against the order of acquittal of the respondents in respect of the prosecution for punishment under Section 220(3) of the Companies Act, 1956 (hereinafter referred to as ' the Act').

2. M/s. Orissa Paper Products Ltd. (accused No. 1) is a company incorporated on May 30, 1969, under the Act. For the year ending on June 30, 1977, the balance-sheet of the company and its profit and loss account were not filed with the Registrar of Companies, Orissa, as required under Section 220(3) of the Act. Therefore, the Registrar issued notice No. PS/D/523/2170(5), dated September 13, 1978, by registered post separately to the company and its four directors, namely, (i) Himansu Sekhar Misra (accused No. 2), (ii) Bhimasen Misra (accused No. 3), (iii) Balakrushna Sarangi (accused No. 4) and (iv) Mehboob Khan. The notice having no effect, the Registrar of Companies filed a complaint on July 6, 1979, in the court of the Sub-Divisional Judicial Magistrate, Sadar, Cuttack, against the company and its directors, namely, Himansu Sekhar Misra, Bhimasen Misra and Balakrushna Sarangi, for having defaulted in complying with the statutory requirement under Section 220 of the Act. Before judgment, the prosecution against Balakrushna Sarangi was permitted to be withdrawn leaving the respondents to defend (themselves). Their plea in short was that the balance-sheet and the profit and loss account for the year ending on June 30, 1977, could not be filed as no annual general meeting was held.

3. The plea of the respondents would have been forceful before December 24, 1977, when Section 220 of the Act was amended by Act 46 of 1977 in view of the decision in State of A.P. v. Andhra Provincial Potteries Ltd. [1973] 43 Comp Cas 514 (SC), where it was laid down that until the annual general meeting is held, there is no question of filing of the balance-sheet and the profit and loss account for a period and, as such, no offence is committed under Section 220(3) of the Act. This was also the view of this court in a Division Bench decision in Vulcan Industries (P.) Ltd. v. Registrar of Companies [1972] 42 Comp Cas 326 (Orissa). These decisions and the other decisions in the line would, however, be of no avail after the amendment of Section 220 by Act 46 of 1977. After the amendment, the balance-sheet and the profit and loss account are to be filed within thirty days from the last date when such documents should have been laid in the annual general meeting if the same had been held. Section 220, as amended, reads as follows :

' Three copies of balance-sheet, etc,, to be filed with Registrar.--(1) After the balance-sheet and the profit and loss account have been laid before acompany at an annual general meeting as aforesaid, there shall be filed with the Registrar within thirty days from the date on which the balance-sheet and the profit and loss account were so laid or where the annual general meeting of a company for any year has not been held, there shall be filed with the Registrar within thirty days from the latest day on or before which that meeting should have been held in accordance with the provisions-of this Act--

(a) three copies of the balance-sheet and the profit and loss account, signed by the managing director, managing agent, secretaries and treasurers, manage or secretary of the company, or if there be none of these by a director of the company, together with three copies of all documents which are required by this Act to be annexed or attached, to such balance-sheet or profit and loss account; ......

(3) If default is made in complying with the requirements of subsections (1) and (2), the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by Section 162 for a default in complying with the provisions of Sections 159, 160 or 161.'

4. The balance-sheet of this company and its profit and loss account for the year ending on June 30, 1977, were required to be laid before the annual general meeting within six months as provided in Section 210, i.e., within December 31, 1977. Under Section 220, as amended, these documents were to be filed with the Registrar within thirty days, i.e., by January 30, 1978, even if no annual general meeting was held. Thus, non-filing of the balance-sheet and the profit and loss account for the year ending on June 30, 1977, even after January 30, 1978, is a default. On the plain language of Section 220(3), respondent No. 1, M/s. Orissa Paper Products Ltd., the company, is liable for the default.

5. Respondent No. 2, Bhimsen Misra, and respondent No. 3, Himansu Sekhar Misra, were the directors of the company. A director is an officer of the company within the meaning of the inclusive definition of ' officer ' in Section 2(30) of the Act. Under Section 220(3), every officer of the company who is in default is also liable for the default.

6. Mr. Misra, learned counsel for the respondents, however, relied upon a Division Bench decision in Nandlal More v. Ramchandiram Mirchandani [1968] 38 Comp Cas 39 (Bom), to submit that only employees are officers and not directors. In the aforesaid decision, the consideration was whether a partner of a managing agency firm of a company would be an officer. In that context, it was held that an officer must be in the relation of an employee or servant of the company. The correctness of theobservation in this decision is not required to be examined since the context in which the observation was made is completely different.

7. Mr. Misra next relied upon a decision of the Karnataka High Court in S. Gururajarao v. State of Karnataka [1979] 49 Comp Cas 468 (Kar), in which the question whether a director of a company is an employee for being liable to be taxed under the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976, was being considered.

8. These two decisions, not being directly on the issue, have no persuasive value in this case.

9. In order that a director is made liable for punishment under Section 220(3), the default in omitting to file the balance-sheet and the profit and loss account is to be wilful. This has been clearly laid down in the Division Bench decision of this court in Vulcan Industries P. Ltd. v. Registrar of Companies [1972] 42 Comp Cas 326, where it has been held while considering the penal provisions under Sections 166, 168, 210 and 220 that the defaulters are punishable, only if their acts or omissions are wilful. The decision of the Kerala High Court in V. M. Thomas v. Registrar of Companies [1980] 50 Comp Cas 247 (Ker), which has ' been rendered relying on Section 5 of the Act, is also to the same effect. Section 5 reads as follows:

'5. Meaning of 'officer who is in default'.--For the purposes of any provision in this Act which enacts that an officer of the company who is in default shall be liable to any punishment or penalty, whether by way of imprisonment, fine or otherwise, the expression 'officer who is in default' 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.'

10. The decision of the Calcutta High Court in Ajit Kumar Sarkar v. Assistant Registrar of Companies [1979] 49 Comp Cas 909 is also to the same effect wherein the phrase 'every officer in default' in Section 162 of the Act was given importance to hold that it is incumbent on the prosecution to fix the liability with the. particular officers in default.

11. Whether an act or omission is wilful is an inference from proved conduct. In spite of receipt of the notice, dated September 13, 1978, by registered post, respondents Nos. 2 and 3 did not take any action to file the balance-sheet and the profit and loss account. No explanation has been offered for such inaction even, after they were reminded by the Registrar. In the absence of any lawful excuse, the omission is wilful.

12. A letter dated October 10, 1977 (exhibit A), addressed by respondent No. 2, Bhimsen Misra, describing him as chairman of the company to theProject Officer, Balangir and District Industries Officer, Balangir, is purported to be the letter of his resignation as director. In this letter, it is has been indicated that respondent No. 3, Himansu Sekhar Misra, has also sent a similar letter of resignation that day to the addressee. No doubt, resignation of a director does not require acceptance. A letter to a third party like the Project Officer or the District Industries Officer would not be a valid letter of resignation. Thus, the liability of respondents Nos. 2 and 3 cannot be got rid of by issue of such a letter. Accordingly, whatever might have been the position till September 13, 1978, the omission to file the balance-sheet and the profit and loss account of the company after receipt of the notice (exhibit 1) becomes wilful and they are liable for the default under Section 220(3) of the Act.

13. To justify the acquittal, it is urged by Mr. Misra that the cognizance of an offence under Section 220(3) of the Act is barred by limitation as the default was committed on January 31, 1978, and the complaint was filed on July 6, 1979, much beyond six months as provided under Section 468(2)(a), Criminal Procedure Code. The complaint had been filed treating the default under Section 220(3) as a continuing offence cognizance of which is protected under Section 472, Criminal Procedure Code.

14. It has been observed by the Supreme Court in a decision in Bhagirath Kanoria v. State of M. P., AIR 1984 SC 1688, 1690:

' The expression 'continuing offence' is not defined in the Code but, that is because expressions which do not have a fixed connotation or a static import are difficult to define'

15. It has been further observed in paragraph 19 of the aforesaid decision (at page 1692):

' The question whether a particular offence is a continuing offencemust necessarily depend upon the language of the statute which createsthat offence, the nature of the offence and, above all, the purpose whichis intended to be achieved by constituting the particular act as anoffence'

16. In an earlier decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908, 909 it was held:

' Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction betweenthe two kinds of offences is as between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.'

17. In a decision in Stale at the instance of the Inspector of Employees' Provident Fund v. Prajatantra Prachar Samiti [1981] 51 CLT 79, 85 while considering the question, this court held:

'...... If the Legislature intended to make it a continuing offence, then

some other phraseology would have been used in the section or recurring penalty for the continuing default would have been levied. '

18. Thus, the nature of penalty as envisaged in the language of the statute is to be taken into consideration to determine whether the act or omission which is punishable is a continuing offence.

19. Relying upon the observation in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908, the Calcutta High Court in a decision in United Savings and Finance Co. P. Ltd. v. Deputy Chief Officer, Reserve Bank of India [1980] 50 Comp Cas 518 (Cal) held an offence under Section 58B(2) of the Reserve Bank of India Act, 1934, providing for fine for each day to be a continuing offence.

20. Under Section 220(3), the defaulter is liable to the like punishment as is provided under Section 162 of the Act. Section 162 provides for fine which may extend to fifty rupees for every day during which the default continues. In view of the nature of penalty provided for, there can be no doubt that the offence under Section 220(3) is a continuing offence.

21. Even where the act or omission is a continuing offence, attracting the punishment of fine only, the offence committed within six months before the date of cognizance would be within the period of limitation as provided under Section 468(2)(a), Criminal Procedure Code. Cognizance in this case having been taken on July 6, 1979, the offence committed by the respondents from January 6, 1979, is only within the period of limitation for which punishment can be imposed.

22. Punishment for omission to discharge a duty which is an offence is provided in a statute not only to compel a person to perform his duty but also as a warning to others similarly situated that in case of their neglect or omission, they would be liable to similar punishment. It is to be remembered that ' offence ' is a wrong to society and the wrongdoers must not be permitted to pollute the rule of law prevailing in our republic.Directorship of a company is not thrust upon a person. It is accepted by choice. When an individual has chosen to be a director, he knows the duties he is to perform. In case he tolerates the wrongs done by others with whom he is associated and does not discard such wrongdoers, he invites the liability. It is no excuse to say that the wrongdoers are not within his control. Similarly, persons entrusted with the duty to deal with wrongs should be alert and should not look into those wrongs casually. Our society is bound like a chain. Weakness of one link in the chain makes the entire society weak and the rule of law is given a goodbye in gradual process. This brings in victimisation, favouritism and misplaced sympathy in accepting lame excuses which are all evils for a good society to prevail. Keeping these principles and the object to be achieved, punishment is to be imposed on the accused.

23. The directors of a company are the trustees of the shareholders. The object of filing the balance-sheet and the profit and loss account periodically before the Registrar is to provide facilities to the shareholders or creditors to inspect the same and to obtain copies thereof for safeguarding their own interest by getting knowledge of the affairs of the company. Parliament had to amend Section 220 to achieve this object so that the defaulters do not escape because the annual general meeting was not held. There is no limitation of period after which a defaulter is absolved from his liability. In the background of this object, it is also to be kept in view that the Registrar acted in this case very casually. It took him one and half years to file the complaint and without any explanation for the delay which speaks much in respect of that office. The amended law was also now in the field. The affairs of the company were in bad shape as is revealed from exhibit A. Imposition of the maximum daily fine for six months in the circumstances would not be justified. It is also to be taken note of that six years after the complaint was filed, the respondents are being punished. Accordingly, while convicting the respondents under Section 220(3) of the Act, each of them is directed to pay a fine of Rs. 50 (fifty) in default to undergo simple imprisonment for one week.

24. In the the result, the appeal is allowed and the order of the trial court is set aside.


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