INDIAN DIE C. C. P. LTD v. THE STATE — 1988 DIGILAW 199 (CAL)

A. C. SENGUPTA, J. ( 1 ) IN this revisional application the accused petitioners being the Company and its Directors pray for quashing the proceeding of the Case No. Cj307 of 1982 filed on 1-2-82 by the respondent No. 2 the Assistant Registrar of Companies against the petitioners under Section 220 (3) read with Section 162 (1) of the Companies Act, 1956 and the order passed in that case by the learned Magistrate taking cognizance and issuing summons against the petitioners. The respondent No. 2 filed that case on the allegations that the Annual General Meeting of the Company should have been held on 30-10-79 and the balance sheet and profit and loss account of the Company for the year ending 30-4-1979 was required to be filed under Section 220 (1) of the Companies Act, 1956 in the office of the complainant on or before 30-10-1979 and that the said officers of the company having not filed the said balance sheet and profit. and loss account were liable to be punished under Section 220 (3) read with Section 1620) of the Companies Act, 1956 thereinafter referred to as the Act ). In the said case the complainant also prayed for giving direction to the accused officers of the Company under Section 614a (1) of the Act to provide for filing the said balance sheet and profit and loss accounts along with the normal furnished Additional fee, ( 2 ) THE one point on behalf of the petitioner that was raised for determination in this revisional application is whether the complaint case was barred by limitation. ( 3 ) BEFORE taking up this point for consideration the relevant statutory provisions are noted below for the sake of convenience: Section 220 (1) of the Act If the balance sheet and the profit and loss account have been laid before the Company at an annual general meeting as aforesaid, there shall be filed with the Registrar within 30 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 date on or before which thatmeeting should have held in accordance with the provisions of the Companies Act- (a) three copies of the balance sheet and the profit and loss account. 220 (3) If default is made in complying with the requirements 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. Section 162 (1) of the Act-TTIf a Company falls to comply with any of the provisions contained in 5ec159, 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. Section 468 Cr. P. C.-Except as otherwise provided elsewhere in this Court, no court shall take cognizance of offence of the category specified in sub-section (2) after the expiry of the period of (2) The period of limitation shall be (a) six months, if the offence is punishable with fine onlysec. 472 of the Code- In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment and the time during which the offence continues. Section 473 of the Code-Notwithstanding anything contained in the foregoing provisions. . . any court may take cognizance of an offence after the expiry of the period of limitation, it is satisfied that it is necessary so to do in the interest of justice. ( 4 ) NOW the point at issue may be taken up for consideration. Section 473 of the Code-Notwithstanding anything contained in the foregoing provisions. . . any court may take cognizance of an offence after the expiry of the period of limitation, it is satisfied that it is necessary so to do in the interest of justice. ( 4 ) NOW the point at issue may be taken up for consideration. Under the provisions of Section 220 (1) of the Act as quoted above the balance sheet and profit and loss account of the relevant year is to be filed with the Registrar within a particular day. The default in filing within the said time become punish able under Section 162 of the Act with fine which may extend to Rs. 50{- for every day during which the default continues. ( 5 ) IN the petition of complaint the offence for violation of the provisions of Section 220 (1) of the Act has been described to be a continuing offence. If it is a continuing offence the complaint though filed more than six months after the default in compliance with the provisions of Section 229 (1) of the Act, the complaint in view of the provisions of Section 472 of the Code of Criminal Procedure 1973 would not be barred by limitation. Otherwise, the complaint having been filed more than six months after the said default would be barred by limitation and the cognizance of the alleged offence could not be taken in view of the provisions of Section 468 of the Code of Criminal Procedure. ( 6 ) THUS the point for our consideration is whether the offence complained of would be deemed to be a continuing offence or not. As the phrase continuing offence used in Section 472 of the Code has not been and could not be usefully defined there had been some controversies with regard to the question as to whether the offence of such a nature would be deemed to be a continuing offence or not. In our view, the difficulty in interpreting as to whether a particular offence is a continuing or not has been removed by the decision one reported in the case of Bhagirath Kanoria and ors. v. The State of Madhya Pradesh1, because in the said decision certain principles which should be taken into consideration while ascertaining as to whether a particular offence is a continuing one or not have been laiddown. v. The State of Madhya Pradesh1, because in the said decision certain principles which should be taken into consideration while ascertaining as to whether a particular offence is a continuing one or not have been laiddown. It has been observed therein that the expression continuing offencet has not been defined in the Code because it is one of these expressions which do not have a fixed can notation or a static import and that is the reason why the concept of a continuing offence cannot be put in a straight jacket. It has been held therein that the decision in the case of State of Bihar v. Deokaran Nanshi and another2 , to the effect that failure to furnish Returns under Section 66 of the Mines Act, 1952 within the prescribed time is not a continuing offence must be confined to cases of failure to furnish Returns and that it cannot be extended to the offence like the one for non-payment of employers contribution under the Employees Provident Fund and Family Pension Act of 1952 the commission whereof is not of a procedural or formal nature and goes against the very grain of the Stature. In the case reported in A. I. R. 1973 S. C. 908 a continuing offence has been described as follows A continuing offence is one which is susceptible of continuance and is distinguishable from one which is committed once and for all. It is one of these 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 occassion when 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 continues an offence once and for all and an act or omission which continues and therefore constitutes a fresh offence every time or occassion on which it continues. In the case of continuing offence, there is thus the ingredient of the 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. In the case of continuing offence, there is thus the ingredient of the 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. After quoting the aforesaid observations the Hontble Court ands in paragraph 19 of the 1984 decision already referred to what follows: The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statutes creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employers contribution before the due date Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expires as they willed. The late payment could not have absolved them of their original guilt But it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers, to hold the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply. In view of the principles enunciated in paragraph 19 of the decision it would be useful to quote paragraph 22 of that decision, which is as follows Before we close, we consider it necessary to draw attention to the provisions of Section 473 of the Code which have extracted above. In view of the principles enunciated in paragraph 19 of the decision it would be useful to quote paragraph 22 of that decision, which is as follows Before we close, we consider it necessary to draw attention to the provisions of Section 473 of the Code which have extracted above. That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI ,of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice, The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions will give due weight and consideration to the provisions contained in section 473 of the Code ( 7 ) AFTER keeping in mind the principles enunciated above, we find that in our present case the offence cannot be said to be a continuing offence. The offence arising for violation of the provisions of Section 220 (1) of the Act was complete on the petitioners failure to furnish the balance sheet and the profit and loss accounts by the due date. The Act does not lay down that the Company and its officers concerned would be guilty of an offence if they continue to carryon the business without furnishing the Returns or that the offence continues until the Returns are furnished. The Act does not render the continuing disobedience or noncompliance of the provisions of Section 220 (1) of the Act an offence. There is nothing in the Act which renders the continued non-compliance of the provisions of Section 220 (1) of the Act an offence until its requirement is carried out. The Act does not render the continuing disobedience or noncompliance of the provisions of Section 220 (1) of the Act an offence. There is nothing in the Act which renders the continued non-compliance of the provisions of Section 220 (1) of the Act an offence until its requirement is carried out. It has nowhere been stated in the Act that running the business of the Company without furnishing the balance sheet and the profit and loss account of the relevant year is an offence. The purpose which is intended to be achieved by constituting the particular Act as offence is for avoiding undue delay in preparation and furnishing of balance sheet and profit and loss account of the Company. Our finding that running the business without furnishing the balance sheet and profit and loss account by the due date has not been made an offence is also supported by the provisions of Section 614a of the Act under which a prayer has also been made in the complaint case in question. As running the business of the Company without furnishing balance sheet by the prescribed day has not been made an offence, the infringement of the provisions of Section 220 (1) can not be held to be a continuing offence only because the offence has been made punishable with daily fine during which the default continues. The principles enunciated in 1984 decision already referred to which we have quoted do not show that the nature of the penalty provided should be taken into consideration for determining as to whether an offence is a continuing offence or not. ( 8 ) WE hold that the offence which is not a continuing one having been completed on 1-11-1979 this case filed on 1-2-1982 is clearly barred by limitation under the provisions of Section 468 of the Code of Criminal Procedure. The provisions of Section 473 of the Code cannot be attracted to this case in view of the principles enunciated. ( 9 ) THE revisional application is accordingly allowed. The Rule is made absolute. The impugned orders are set aside and proceedings are quashed. .