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Sudarsan Chits (India) Ltd. and ors. Vs. Registrar of Companies - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKerala High Court
Decided On
Case NumberCriminal M.C. Nos. 21 and 24 of 1984
Judge
Reported in[1986]59CompCas261(Ker)
ActsCompanies Act, 1956 - Sections 159, 160, 161, 162 and 220; Code of Criminal Procedure (CrPC) , 1973 - Sections 467, 468, 469, 470, 471, 472 and 473
AppellantSudarsan Chits (India) Ltd. and ors.
RespondentRegistrar of Companies
Appellant Advocate K.P. Dandapani,; Sumathi Dandapani and; Jaju Babu, A
Respondent AdvocatePublic Prosecutor
DispositionPetition dismissed
Cases ReferredState of Maharashrta v. Ajit Maneklal Choksey
Excerpt:
.....or fine upto limit but fine extending to rs. 50 for everyday during which offence continues - offence continuing offence as legislature prescribed punishment of fine for everyday during which offence continued - section 162 stipulates that default or offence was not something which took place once and for all but is one which continued - scheme of provisions is to constitute offence punishable under section 162 a continuing offence. - - sub-section (3) states that if default is made in complying with the requirements of sub-sections (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 section 159, 160 or 161. sections 159 and 160 deal..........of limitation commences on the date of the offence. section 472 states that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of time during which the offence continues.4. in these two cases, the balance-sheets were required to be filed at the latest on november 30, 1980, and march 2, 1981, respectively. the complaints were filed more than six months thereafter. obviously, the complaints were filed long after the expiry of six months from the last dates on which the balance-sheets were required to be filed, these dates being the dates of offences. the registrar of companies contends that the offences alleged in these cases are continuing offences and, therefore, a fresh period of limitation begins to run at every moment of time.....
Judgment:

U.L. Bhat, J.

1. The first and second petitioners in the two cases are common. The first petitioner is a company under the Companies Act, 1956 (for short ' the Act '), and petitioners Nos. 2 to 4 are its directors. The common respondent is the Registrar of Companies, Kerala, Ernakulam. The company was required to file before the Registrar of Companies, the balance-sheet and the profit and loss account for the periods ending April 30, 1980, and July 31, 1980, before November 30, 1980, and March 2, 1981, respectively. The company, however, did not file the balance-sheets and, therefore, the Registrar filed two complaints before the Chief Judicial Magistrate, Ernakulam, against the company and its directors alleging the commission of offences punishable under Section 220(3) of the Act. The accused filed petitions before the trial court in Crl. M.P. Nos. 890 of 1983 and 894 of 1983, respectively, praying for dismissal of the complaints and acquittal of the accused on the ground that the complaints are barred by limitation and the court had no territorial jurisdiction to entertain the complaints. The trial court rejected these contentions and dismissed the petitions and the Sessions Court in revision declined to interfere. Hence, these petitions are filed by the accused under Section 482 of the Code of Criminal Procedure (for short ' the Code ') seeking to quash the orders.

2. Sub-section (1) of Section 220 of the Act states that after the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as required by the provisions of the Act, 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 30 days from the latest day on or before which that meeting should have been held in accordance with the provisions of the Act, three copies of the balance-sheet and the profit and loss account signed by the managing director, managing agent, secretaries and treasurers, manager 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. Sub-section (3) states that if default is made in complying with the requirements of Sub-sections (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 Section 159, 160 or 161. Sections 159 and 160 deal with preparation and filing with the Registrar of returns containing the particulars as stated therein, in the case of companies having share capital and companies not having a share capital respectively. The returns are to be filed within sixty days from the day on which each of the annual general body meetings referred to in Section 166 is held. Section 161 contains further provisions regarding the annual return and certificate to be annexed thereto. Sub-section (1) of Section 162 deals with penalty. If a company fails to comply with any of the provisions contained in Section 159 or 160 or 161, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to Rs. 50 for every day during which the default continues.

3. The Act does not prescribe any period of limitation for filing complaints. Therefore, by virtue of Sub-section (2) of section 4 of the Code, the provisions of Chapter XXXVI of the Code, namely, Sections 467 - 473, will apply to prosecutions under the Companies Act. Section 468 prescribes the period of limitation for taking cognizance of offences. Under clause (a) of Sub-section (2) of this section, if the offence is punishable with fine only, the period of limitation would be six months. Therefore, in the present case, the period of limitation is six months. Section 469 deals with commencement of the period of limitation. It shall commence on the date of the offence (Clause (a)), or where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier (Clause (b)), or where identity of the offender was not known, the first day on which it became known to the person aggrieved or the police officer. The day from which the period is to be computed has to be excluded. In the present case, the period of limitation commences on the date of the offence. Section 472 states that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of time during which the offence continues.

4. In these two cases, the balance-sheets were required to be filed at the latest on November 30, 1980, and March 2, 1981, respectively. The complaints were filed more than six months thereafter. Obviously, the complaints were filed long after the expiry of six months from the last dates on which the balance-sheets were required to be filed, these dates being the dates of offences. The Registrar of Companies contends that the offences alleged in these cases are continuing offences and, therefore, a fresh period of limitation begins to run at every moment of time during which the offences continue and, hence, there is no bar of limitation. The accused denies that the offences are continuing offences and, as such, the prosecutions are barred by limitation.

5. Learned counsel for both sides submitted that the only direct decision on the point is the one of a learned single judge of the Calcutta High Court in Ajit Kumar Sarkar v. Assistant Registrar of Companies [1979] 49 Comp Cas 909. The case related to failure to submit returns dealt with in Sections 159 and 161 of the Act. The complaint filed by the Registrar was not proceeded with following the decision of the High Court that the proceedings were void on account of violation of Section 200 of the Code. The decision of the High Court was set aside by a decision of the Special Bench. Thereafter, the Registrar filed fresh complaint on the same facts. It was contended that the prior order amounted to discharge or acquittal and, therefore, a fresh complaint did not He and also that the fresh complaint was barred by limitation. Both the contentions were overruled by the Calcutta High Court. After referring to the decisions in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908 (a case which arose under the Mines Act), Murlidhar Ram Narayan v. Corporation of Calcutta, AIR 1928 Cal 387, 32 CWN 591, (a case which arose under the Calcutta Municipal Act), Wire Machinery . v. State [1979] 49 Comp Cas 197 (Cal), (a case which arose under the Provident Funds Act), G. D. Bhattar v. State, AIR 1957 Cal 483 (a case which arose under the Mines Act), the Calcutta High Court held that the offence involved was a continuing offence and the bar of limitation did not apply.

6. I am also referred to a decision in Provident Fund, Inspector v. Parvathi Mills Ltd. [1980] KLT 272. The case dealt with a complaint for violation of certain provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, and the Employees' Provident Funds Scheme. The accused were required to make payment to the fund of contributions for every month within the 15th day of the following month. In connection with the plea of limitation, the question arose whether the offence is a continuing offence. Balagangadharan Nair J. referred to the decisions in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908, Wire Machinery's case [1979] 49 Comp Cas 197 (Cal), and other decisions and took the view that the offence involved was not a continuing offence. The learned judge distinguished the provisions of the Act under consideration with certain other acts and observed as follows:

'It is also significant that the Act does not provide that the offence is a continuing offence such as is provided in sections 92 and 102, Factories Act, 1948, Sections 162 and 272, Companies Act, 1956, etc. '

7. The law on the point has been succinctly explained by the Supreme Court in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908. The Supreme Court in that case had to consider the provisions of the Mines Act, 1952, and the regulations thereunder. The owner and manager of every mine is required to forward to the District Magistrate and the Chief Inspector, annual returns in respect of the preceding year on or before the 21st of January, each year. Omission to furnish the returns within the prescribed time is punishable under Section 66 of the Mines Act, with fine which may extend to Rs. 1,000. It was held that the offence involved is not a continuing offence. The court observed (at page 909):

' 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 a 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 between the two kinds of offences is 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.'

8. In these cases, we are construing the provisions of the Companies Act. The judicial decisions in regard to provisions under other Acts cannot be the guiding factor in interpreting the provisions of this Act, though, however, the broad principles of law are the same. Every decision turns on the provisions of a particular Act and cannot as such be applied in interpreting the provisions of a different Act. Sub-section (1) of Section 220 of the Act which requires filing with the Registrar, of balance-sheet and profit and loss account, fixes a time-limit for the performance of the Act and Sub-section (3) makes a default punishable. It has been argued that the default and the offence would take place once and for all on the expiry of the period of thirty days mentioned in Section 221 and no such default would occur on the succeeding days. That was the conclusion arrived at by the Supreme Court in the above decision on the construction of the Mines Act, and of this court on a construction of the provisions of the Provident Funds Act. The Calcutta High Court took a similar view on the provisions of the Provident Funds Act in Wire Machinery's case [1979] 49 Comp Cas 197 (Cal), and the Bombay High Court took a similar view on the provisions of the Industrial Disputes Act in State of Maharashrta v. Ajit Maneklal Choksey [1979] 1 LLJ 423. But in none of these decisions were the relevant provisions of the Companies Act considered. These provisions, however, were considered by the Calcutta High Court in Ajit Kumar Sarkar's case [1979] 49 Comp Cas 909 to come to the conclusion that the offence involved is a continuing offence.

9. It appears to me on a comparison of the provisions of the various Acts dealt with in these decisions that there is a vital difference between the relevant provisions of the Companies Act and the other Acts. If this offence under the Companies Act is not a continuing offence but an offence which takes place once and for all, then the provision for punishment would have been imprisonment or fine up to a particular limit irrespective of other considerations. The punishment provided in Section 162 is not imprisonment or fine up to a limit but fine which may extend to Rs. 50 for every day during which the default continues. Such a provision is absent in the statutes dealt with in most of the above decisions. Section 162 makes it clear that the default or offence is not something which takes place once and for all but is one which continues. That is why, instead of prescribing fine up to a limit as punishment as in certain other statutes, the Legislature prescribed punishment of fine for every day during which the default continues. The idea implicit in this provision is that the offence is a continuing offence notwithstanding the fact that for the performance of the particular act, a time limit has been prescribed. This has to be taken in the light of the provisions in Section 611(2) of the Act which enables filing of documents with the Registrar after the time prescribed on payment of additional fees as prescribed therein. Sections 629(a) of the Act also makes a distinction between the offences of the two types. That is a residuary provision prescribing punishment. The punishment prescribed is fine which may extend to Rs. 500 and where the contravention is a continuing one, with a further fine which may extend to Rs. 50 for every day after the first during which the contravention continues. Thus, it can be seen that the scheme of the provisions is to constitute an offence punishable under Section 162 of the Act, a continuing offence. In this view, I have to hold that Section 472 of the Code applied to the instant case and it has not been shown that the complaints are barred by limitation.

10. The next contention relates to territorial jurisdiction of the court. The offence relates to default in filing documents with the Registrar. The Registrar in question is the Registrar of Companies, Kerala, with the office at Ernakulam. The performance of the Act which is in default is to take place at Ernakulam and, therefore, the court at Ernakulam has certainly jurisdiction.

11. I 'find no ground to interfere and, therefore, the Crl. M. Cs. are dismissed.


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