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Nripendra Kumar Ghosh Vs. Registrar of Companies and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberMatter No. 1430 of 1983
Judge
Reported in[1985]58CompCas672(Cal),88CWN850
ActsCompanies Act, 1956 - Sections 159 and 162
AppellantNripendra Kumar Ghosh
RespondentRegistrar of Companies and ors.
Appellant AdvocateS.B. Mukherjee, Adv.
Respondent AdvocateP.C. Sen, Adv.
Cases Referred(Parshva Properties Ltd. v. Registrar of Companies.
Excerpt:
- .....shall be punishable with fine which may extend to fifty rupees for every day during which the default continues. section 220(1) provides that after the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting, they 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.4. sub-section (3) of section 220 further provides 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, section 160 or section 161 of the companies.....
Judgment:

Umesh Chandra Banerjee, J.

1. This application arises out of complaints filed by the Registrar of Companies, being Case Nos. C/2083/82, C/2085/82, C/2103/82, C/2112/82, C/2138/82, C/2146/82, C/2151/82 and C/2163/82 in the Court of the Chief Metropolitan Magistrate. While some of the proceedings were commenced on an allegation that the accused persons have not filed the annual return up to September 30, 1977, to the office of the complainant though the same ought to have been filed with the complainant on or before November 28, 1977, and the default alleged is the non-compliance with the provisions of Sections 159 and 162 of the Companies Act, 1956, the other proceedings were commenced for non-compliance of Section 220(1) of the Companies Act.

2. In this writ petition, the petitioner prays for quashing of the proceedings and canvasses in support of the application, only the bar of limitation.

3. Before adverting to the question of limitation, the relevant provisions of the Companies Act should be considered. Section 159 of the Companies Act provides that 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 Pt. I of Schedule V, as they stood on that day. Section 160 provides that every company not 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 stating the particulars as they stood on that day. Section 161 provides further provisions regarding annual return and certificate. Section 162(1) provides that if a company fails to comply with any of the provisions contained in Section 159, Section 160 or Section 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. Section 220(1) provides that after the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting, they 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.

4. Sub-section (3) of section 220 further provides 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, Section 160 or Section 161 of the Companies Act,Section 468 of the Cr. PC proscribes the period of limitation and provides that for offences punishable with fine, the period of limitation would be six months from the date of accrual of the right to prosecute. The right to prosecute in this case accrued on November 28, 1977. Admittedly, the complaint was filed on June 25, 1982, which is beyond the period of six months.

5. Mr. P.C. Sen, appearing on behalf of the Registrar of Companies, contended that the offence is continuing in nature. Mr. Sen submitted that the language used in Section 161(1), namely, ' during which default continues', makes the position very clear in regard to continuity and a fine of Rs. 50 for every day during which the detault continues further clarifies the intent of the Legislature to make the offence a continuing one.

6. Mr. S.B. Mukherjee, counsel appearing for the petitioner, however, contended that the offence contemplated by Section 162(1) cannot be a continuing one and, as such, he submitted that the complaint filed beyond the period of limitation cannot be taken cognizance of by the parties.

7. In regard to the question of a continuing offence, the Supreme Court in the State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , observed that (at p. 909) a 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 that between an act or an 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. The Supreme Court, in the aforesaid decision, further observed that as in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made.

9. The said decision of the Supreme Court was considered by the Division Bench of this court in the matter of Wiree Machinery . v. State [1978] Cal HN 293 ; [1979] 49 Comp Cas 197 (Cal). In that case, the petitioners were being prosecuted in the Court of the Metropolitan Magistrate, 7th Court, Calcutta, under the provisions ofSections 14(1A), 14(2), 14A(1) and 14AA of the Employees' Provident Funds and Family Pension Fund Act, 1952, read with para 76(b) of the Employees' Provident Funds Scheme. According to the petition of complaints, the petitioners, who were directors, had not paid the employers' and employees' share of the contributions and administrative charges for the different months which is the subject-matter of the cases started against them. While considering the facts of that case, this court observed that once defaults were made, the offences were committed once and for all and became complete on the close of the due date. As such, there would not be any ingredient of continuance in the offence to make it a continuing one. It was further observed that the provision in Section 14C of the Act for penalising a defaulting employer with a day-to-day fine till the deposit is made good does not make an initial infringement a continuing offence and in the result, this court made the rule absolute on the ground that complaints were filed beyond the stipulated period of limitation under Section 468(2)(b) of the Cr. PC. The said decision of the Supreme Court was also considered by another Division Bench ot this court in the case of National Cotton Mills v. Assistant Registrar of Companies, [1983] Cal HN 180 ; [1984] 56 Comp Cas 222 (Cal). While considering Sections 159 and 162(2) of the Companies Act, this court observed that in order to constitute a continuing offence, the offence must arise 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. The court observed that Section 159 of the Companies Act does not impose any liability which so continues. The offence on the breach thereof is complete with the failure to furnish the return in the manner or within the time stipulated. Such an offence is committed once and for all as and when one commits the default. That provision does not contemplate that the obligation to submit such returns continues from day-to-day until the return is actually submitted nor does it provide that continuance of business without filing of such returns is prohibited so that non-fulfilment of a continuing obligation or continuing of business without filing of such returns becomes a continuing offence. When Section 162 of the Companies Act prescribed the penalty of fine which may extend to fifty rupees for every day during which the default continues, it merely prescribed the measure of penalty--such a prescription being made with the object of enforcing strict compliance with the requirement of Section 159 under the threat of enhanced penalty and getting relief from such penalty on enhancing scale by early submission of return even after the default. That does not render the initial default a continuing one. The offence cannot be said to be repeated or committed from day-to-day after the initial default. It is only where the offence is committed from day-to-dayor repeated from day-to-day, then and in that event only, it can be called a continuing offence. The language of Section 162 does not warrant any continuity as they are in Sections 234, 294, 372 and 598 of the Companies Act. The judgment of the learned single judge in Ajit Kumar Sarkar v. Assis-tant Registrar of Companies [1979] 49 Comp Cas 909 ; 83 Cal HN 108 has been expressly disapproved by the later decision of this court and, as such, in my opinion, cannot be treated as a precedent.

10. Mr. P.C. Sen, however, drew my attention to an unreported decision of this court in Criminal Revision No. 40-402 of 1980 (Parshva Properties Ltd. v. Registrar of Companies., In that decision, this court considered the provisions of Section 372(8) of the Companies Act. Sub-section (8) of Section 372 expressly provides that if a default is made in complying with the provisions of Sub-sections (6) and (7) of Section 372, the company and other officers of the company, who are in default, shall be penalised with a fine which may extend to Rs. 500 and also with a further fine which may extend to Rs. 50 for every day after the first day during which the default continues. The section, by its term, indicates that the penalty may extend to a period even after the initial default so long as the default continues. Mr. Sen, however, contended strongly that the expression ' during which the default continues ' also appears in Section 162 and, as such, the offence under Section 162(1) is a continuing offence. I am, however, unable to agree with the contention of Mr. Sen inasmuch as the said unreported decision was specifically dealing with the provision of Section 372(8) and the element of continuity is apparent but that is not the case in regard to Section 162(1).

11. In that view of the matter, since, in my opinion, the offence under Section 162(1) cannot be termed as a continuing offence and since the complaint has admittedly been filed beyond the period of six months, the complaint is wholly barred by the law of limitation.

12. The rule is thus made absolute. The Criminal Cases being No. C/2083/82, C/2085/82, C/2103/82, C/2112/82, C/2138/82, C/2146/82, C/2151/82 and C/2163/82 before the Chief Metropolitan Magistrates, Calcutta, are quashed. There will, however, be no order as to costs.

13. Oral prayer for stay made but refused.


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