JUDGMENT 1. - In this petition under Section 482 of the Code of Criminal Procedure, the petitioners have prayed to quash the complaint and the orders dated, November 28, 1991 and January 18,1992 passed by Special Judicial Magistrate (Economic Offences) Rajasthan, Jaipur in Criminal Complaint Case No. 492/89. 2. In order to appreciate the contentions urged by the learned Counsel for the petitioners, it will be proper to set out necessary facts of the case before dealing with them.The Registrar of Companies, Jaipur has filed a complaint against the petitioners, the Company M/s. Kopyrite Ltd. and Shri M.R. Pathankar. At the outset it may be stated that the proceedings are in the initial stages as all the accused have not yet appeared in Trial Court after service. The petitioners, too, are not appearing and bailable warrants have been issued several times to secure their attendance in Court. Atone point of time the petitioners had appeared in Court through their Counsel, but on 29.11.91 their Counsel also did not appear and bailable warrants have been issued. 3. The complaint has been filed under Section 220(3) of the Companies Act. The petitioners and the co-accused M.R. Pathankar were made accused as being Directors of the Company, on the charge that they committed default in complying with the requirements of Sub-sections (i) and (ii) of Section 220 of the Act which required filing of copies of the Balance-Sheet and the Profit and Loss Account with the Registrar of Companies within a specified period. Sub-section (3) of Section 220 provides that every officer of the Company who is in default shall be liable to punishment as provided in Section 162 for a default in complying with the provisions of Sections 159, 160 or 161 of the Companies Act. Section 162 provides penalty of fine which may extend to 50 rupees for every day during which the default continues. The learned Magistrate took cognizance of the offence on 25th October, 1989 and issued process against the accused. On 24th July, 1990 petitioners Dilip Kulkarni and Smt. Sheila M. Kulkarni appeared in Court through their Counsel Mr. Alankar Khanna and their personnel attendance for the day was dispensed with on the application. The learned Magistrate took cognizance of the offence on 25th October, 1989 and issued process against the accused. On 24th July, 1990 petitioners Dilip Kulkarni and Smt. Sheila M. Kulkarni appeared in Court through their Counsel Mr. Alankar Khanna and their personnel attendance for the day was dispensed with on the application. On next date, i.e. 25.8.90,the Presiding Officer was on leave and petitioners' personal attendance was again dispensed with for the day; but a direction was given to appear in person on the next date of hearing. Then, on 15.10.90 Mr. Mahendra Singh, Advocate appeared for all the accused except Shri M. R. Pathankar and moved an application under Section 205 of the Code to dispense with their personal attendance. However, no order was passed on this application and the case was adjourned to procure attendance of the co-accused M. R. Pathankar. The case was, then, adjourned on several dates as co-accused M.R. Pathankar could not be served. On 29.11.91, neither petitioners nor their Counsel appeared in Court and the concerned Magistrate at 4 p.m. passed order directing to issue available warrants against the petitioners. On next date the petitioners and their Counsel again absented and warrants also returned unnerved. Thereafter, Mr. Mahendra Singh, Advocate again appeared and the application filed by him to withdraw order of bailable warrants and to allow the petitioners to appear through a Counsel was dismissed on the same day. Thereafter, neither the petitioner nor their Counsel have appeared before the Trial Magistrate and they have moved this petition under Section 482 Cr.P.C. on 25.10.93. 4. Mr. Paras Kuhad, appearing for the petitioners, with his usual eloquence and vehemence contended that cognizance in the case has been taken by the Magistrate beyond six months after the alleged defaults were made by the petitioners, as such, it was barred under Section 468 of the Code. Learned Counsel also contended that the petitioners were merely Directors of the Company and since the company was having a Production Manager at the relevant point of time, they were not 'officers in default' as envisaged under Section 5 of the Companies Act, as such, their prosecution is erroneous on the face of the record and further continuation of criminal proceedings against them would an abuse of the process of the Court. It was also contended that Management of the Company was never transferred to the petitioners as per Memorandum of Undertaking (in short MOU) and they could not be made vicariously liable for non-compliance of the provisions under the Companies Act. Lastly, it was contended that petitioner No. 1 is a non-resident Indian and remains out of India, while petitioners Nos. 2 and 3 are ladies and looking to the nature of accusation they be permitted to appear through their Counsel. 5. On the other hand, Mr. Suresh Pareek, appearing for the Registrar of the Companies, with equal vehemence contended that the petitioners have not come with clean hands and they have made misstatement of facts in the petition before this Court, as such, the petition be dismissed on this ground alone. It was also contended that the petitioners were Directors of the Company and their appointment as such was informed to the complainant by filing Form No. 32 under Section 303 of the Companies Act and they are liable to be prosecuted and punished for non-compliance of Sub-sections (i) and (ii) of Section 220 of the Companies Act. Mr. Pareek also contended that the Company was having no Managing Director and the Production Manager does not fall within the definition of 'Manager' under Section 2(24) of the Companies Act and he is not an office in default' within the meaning of Section 5 of the Act. Lastly, it was contended that the offence under Section 220(3) read with Section 162 of the Companies Act is a 'continuing offence' within the meaning of Section 472 of the Code and otherwise also Section 473 of the Code has over-riding effect on Section 468 and the learned Magistrate was competent to take cognizance if he was of the opinion that it was necessary to do so in the interests of justice. Then, it was contended that conduct of the petitioners does not warrant any relief in their favour as after 29.11.91 they did not appear before the learned Magistrate either in person or through Counsel and this petition has been filed on 25.10.93. 6. I have given my careful consideration to the above submissions. Earlier to the Code of Criminal Procedure, 1973, there was no period of limitation for launching prosecution against the accused and a complaint or a police report could not be thrown solely on the ground of delay. 6. I have given my careful consideration to the above submissions. Earlier to the Code of Criminal Procedure, 1973, there was no period of limitation for launching prosecution against the accused and a complaint or a police report could not be thrown solely on the ground of delay. The Code of Criminal Procedure, 1973 incorporated Chapter XXXVI prescribing limitation for taking cognizance of certain offences. The object of providing limitation on prosecution was to prevent the parties from filing case after a long time as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. It was also necessary as by passing of time the testimony of witnesses become weaker and weaker because of lapse of memory and deterrent effect of punishment is also impaired if prosecution was not launched and punishment was not inflicted before the offence had been dipped off from the memory of the persons concerned. This object is in consonance of Article 21 of the Constitution. However, for a 'continuing offence' a fresh period of limitation begins every day and extension of period of limitation is also permissible in certain cases as per Section 473. Sections 468(1), 472 and 473 of the Code, which occur in the Chapter and which are relevant for our purpose read as under: "Sec. 468(1). Bar to taking cognizance after lapse of the period of limitation-Except as otherwise in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. Section 472. Continuing offence-In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the of- fence continues. Sections 473. Extension of Period of portion of limitation in certain cases-Not- withstanding anything contained in the foregoing provisions of this Chapter any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied in the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice." 7. The first and the fore most question for my consideration is, whether an offence punishable under Section 220(3) read with Section 162(1) of the Companies Act is 'continuing offence' within Section 472 of the Code ? 8. The expression 'continuing offence' has not been defined in the Code. It does not have any fixed concept and its meaning, nuances and effect vary statute to statute creating it. The Supreme Court in the case of Bhagirath Kanoria v. State (1984 SC 1688 = (1984) 4 SCC 222 ) has observed "the expression 'not having any fixed connotation or statistic 'import' is difficult to define to put in a straight-jacket formula." 9. In State of Bihar v. Deokaran Nenshi and Another ( AIR 1973 SC 908 = 1973 Cr. L.J. 347) , the Apex Court of the country has drawn distinction between an offence which is committed once and for all and a 'continuing offence' in para 5 of the judgment as under: "5. 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 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." That was a case under the Mines Act, 1952. Section 66 of the said Act required submission of annual return within the time prescribed. The Supreme Court ruled : "The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Regulation 3 is complied with. The Supreme Court ruled : "The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Regulation 3 is complied with. In other words Regulation 3 does not render a continued disobedience or non-compliance of it an offence. 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 a default occurs in furnishing the return by the prescribed date. There is nothing in Regulation 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out." 10. As a logical corollary an inference from the above decision would be that if the relevant law has not only made the default punishable as offence, but further provides penal liability to continue until the default is removed, the continuation of such default would be a continuing offence'. Applying the aforesaid test in the present case, where failure to submit copies of Balance- Sheet and Profit and Loss Account within the period prescribed has been made punishable with fine which may extend to 50 rupees for everyday during the default continues, it would, in my opinion, be legitimate to hold that the offence punishable under Section 220(3) read with Section 162(1) is a 'continuing offence'. In Devkaran Nenshi's case (supra), the Supreme Court has authoratively laid down that if penal liability for a default continues and continuance of the default is also made punishable, say with fine for each day of such continuation as is in Section 162(1) of the Companies Act, the offence would be a continuing one. 11. In a later decision of the Supreme Court in Bhagirath Kanoria's case (supra), failure to pay the employer's contribution under the Employees Provident Fund and Family Pension Act, 1952 within the time prescribed has been held to be a continuing offence'. 11. In a later decision of the Supreme Court in Bhagirath Kanoria's case (supra), failure to pay the employer's contribution under the Employees Provident Fund and Family Pension Act, 1952 within the time prescribed has been held to be a continuing offence'. It is true that in this judgment the object of the Act weighed very much with the Court for holding the offence to be a 'continuing offence' even though the section did not expressly provide non-compliance thereof the employer liable to any continued or further penalty until payment was made. But, still the Supreme Court observed thus : "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 expired as they willed. The late payment could not have absolved them of their original guilt but 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." The above observations would apply to an offence under Section 162(1) or Section 220(3) of the Companies Act with all their right. 12. A Division Bench of the Calcutta High Court in Luxmi Printing Works Ltd. and Others v. Assistant Registrar of Companies (1989(2) Cr. L.J. 2388) has taken the view that the offence for non-submission of Balance-Sheet and Profit and Loss Account etc., which is punishable under Section 220(3) read with Section 162(1) of the Act, is a continuing offence'. I am in agreement with the view expressed and the reasoning adopted in this judgment. 13. Further, Section 473 of the Code empowers a Court to take cognizance of an offence not only when it is satisfied on the facts and circumstances of the case that the delay has been properly explained but even in the absence of proper explanation if the Court is satisfied that it is necessary so to do in the interests of justice. This Section has an over-riding effect on Section 468 as held by the Apex Court in Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy and Others (1993) 3 SCC 4 =11 (1993) CCR 186 (SC)) . This Section has an over-riding effect on Section 468 as held by the Apex Court in Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy and Others (1993) 3 SCC 4 =11 (1993) CCR 186 (SC)) . In Bhagsrath Kanoria's case (supra) also Section 473 of the Code was referred and it was observed : "..That section is in the nature of an over- riding 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 appellant 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." 14. Taking into consideration the object behind filing of copies of Balance-Sheet and Profit and Loss Account with the Registrar within the period prescribed and the powers of Registrar to call for information under Section 234 and investigation of a Company's affairs as provided under Section 235 and onward. I am of the definite view that it has a public purpose behind it. Considering the object and purpose of the provisions, the interest of justice required that the Court should take cognizance of such offence even after expiry of period of limitation, even if it is held that the offence is not of continuing nature. 1, therefore, reject the argument of Mr. Kuhad that proceedings against the petitioners be quashed on the ground that cognizance has been taken after expiry of the period of limitation. 15. The next contention of Mr. Kuhad that the petitioners did not to fall within the term "office who is in default' as defined under Section 5 of the Companies Act in view of the fact that the Company was having a Production Manager, has also no substance. 15. The next contention of Mr. Kuhad that the petitioners did not to fall within the term "office who is in default' as defined under Section 5 of the Companies Act in view of the fact that the Company was having a Production Manager, has also no substance. 16. Section 5 of the Companies Act reads as under: "Section 5. Meaning of "officer who is in default". For the purpose 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 all the following officers of the Company, namely - (a) the managing director or managing directors; (b) the whole-time director or whole-time directors; (c) the manager; (d) the secretary; (e) ................ (f) ................ (g) where any company does not have any of the officer specified in Clauses (a) to (c) any director or directors who may be specified by the Board in this behalf or where no director is specified all the directors. Provided that where the Board exercises any powers under Clause (f) or Clause (g), it shall within thirty days of the exercise of such powers, file with the Registrar a re- turn in the prescribed form." A perusal of the above section makes it clear that Clause (g) applies if a Company does not have a managing director; a whole time director or a manager specified in Clauses (a) to (c). In that situation, in absence of a director/directors being specified by the Board in this behalf, all the directors of the company become liable to punishment as officer of the company in default. 17. In the instant case, admittedly, there was no Managing Director or a whole time Director or a Manager of the Company. The Production Manager, who at the most supervises the production of the company does not fall within the term 'Manager' of the Company, and as such, the argument of Mr. Kuhad that the Directors of the Company cannot be prosecuted as the company was having a Production Manager, deserves to be rejected without any hesitation. 18. The next contention of Mr. Kuhad that the Directors of the Company cannot be prosecuted as the company was having a Production Manager, deserves to be rejected without any hesitation. 18. The next contention of Mr. Kuhad that the MOU between the earlier management and the petitioners was not implemented as well the record of the company was not transferred/ handed over to the petitioners or that the petitioners had bonafide difficulty in not preparing the Balance Sheet and Profit and Loss Account of the Company, are questions of fact which can be decided at appropriate stage after recording evidence. In fact, they relate to the defence which the petitioner can take and prove in the Trial Court after leading the evidence. Neither any opinion can be expressed at this stage nor it is advisable to do so. 19. At the stage of taking cognizance by a Magistrate, proceedings can be quashed only if the allegations set out in the complaint or charge-sheet do not in law constitute or spell out any offence and that the resort to criminal proceedings within the circumstances amounts to an abuse of the process of the Court. When the allegations in the complaint prima facie constitute an offence against any or all of the accused in the absence of material on record to show that continuation of the proceedings would be an abuse of the process of the Court or would defeat the ends of justice, complaint should not be quashed in exercise of inherent power under Section 482 of the Code. 20. In Municipal Corporation of Delhi v. Rk. Rohtagi (1983) 1 SCC 1 : 1983 SCC (Cri) 115: (1993) 1 SCR 884-890) it is observed : "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code." 21. The same view has been reiterated in Municipal Corporation of Delhi v. P. D. Jhunjunwala (1983) 1 SCC 9 ) and State of Bihar v. Mural Ali Khan (1988) 4 SCC 655) . The same view has been reiterated in Municipal Corporation of Delhi v. P. D. Jhunjunwala (1983) 1 SCC 9 ) and State of Bihar v. Mural Ali Khan (1988) 4 SCC 655) . Thus, on merits this petition deserves to be dismissed. 22. Before parting with I would like to deal with the last argument urged by Mr. Kuhad for granting exemption from personal attendance to the petitioners. It is true that the conduct of the petitioners after 29.11.91 cannot be appreciated as they avoided to appear in the Court, as well as, the service of bailable warrants. Normally, this Court is reluctant to exercise discretionary inherent power in favour of such persons, but taking into consideration the nature of accusation and the fact that the petitioner No. 1, Dilip Kulkami is non-resident Indian and he has to remain out of India for substantial period and that petitioners No. 2 and 3 are women, I am of the opinion that they should be given exemption from personal attendance under Section 205(1) of the Code. 23. In Gopal Ram and Others v. State of Rajasthan and Another (RLR 1994(1)108) , I have observed that the Could should be ordinarily generous and liberal in exempting personal attendance of the accused except in cases of serious nature and cases of moral turpitude. It has been further observed in the case : "The Court should consider the nature of accusation and the prejudice, if any, likely to be caused if personal attendance is made compulsory. Therefore, in trivial criminal cases, personal attendance of the accused should be exempted as a rule, if no prejudice was likely to be caused in the fair trial. The Court has to weigh inconvenience to be caused to the accused if he is required to be absent from his vocation, profession, trade or occupation by calling him for attendance in the Court, against the prejudice likely to be caused if he does not appear in the Court. I am also of the view that the Court should normally dispense with the personal attendance of a woman accused. In Rajasthan, it is not taken to be a good thing for the ladies to appear in a Court of law and there is feeling amongst the ladies that they would be socially looked down, if they appear in the Court. In Rajasthan, it is not taken to be a good thing for the ladies to appear in a Court of law and there is feeling amongst the ladies that they would be socially looked down, if they appear in the Court. Even if a lady is not 'Pardanashin', the Court should not unnecessarily hurt her feelings and her personal attendance should be exempted unless her presence is very much necessary in the case. 24. The net result of the above discussion is that this revision fails on merits. However, the concerned Magistrate is directed to dispense with personal attendance of the petitioners provided each of them furnishes surety bond in the sum of Rs. 5,000/- to his satisfaction with a stipulation to appear in the Court at any stage of proceedings as and when called upon to do so, if the petitioners or anyone of them fail/fails to appear in Court even after specific direction, the concerned Court shall been titled to enforce their attendance in accordance with law.The revision stands disposed of as indicated above. The record of the Trial Court be sent back immediately.Revision dismissed. *******