( 1 ) PER Hon'ble Sri Justice A. Gopal Reddy)The question referred to this Bench is a simple one, "whether failure to comply with the statutory requirement of Section 220 of the Companies Act, 1956 (for short "the Act")can be said to be a continuing offence or not" the facts giving rise to reference may be stated in nutshell as follows: the petitioner is a Director of M/s. Palaypu Financial and investment Services Limited (A1 ). He and another Director were prosecuted along with the Company for the offence under section 220 of the Act for their failure to file the return, namely, the audited Balance Sheet and Profit and Loss Account required to be laid before the Annual General Meeting i. e. 30-09-1999 as required under Section 210 of the Act within six months before the close of the financial year and three copies of the Balance sheet etc. so laid shall be filed with the Registrar of companies (hereinafter referred as "complainant") on or before 30-10-1999 and in case the Balance sheet etc. was not laid before the Annual general Meeting; three copies thereof shall be filed with the complainant on or before which the Annual General Meeting should have been held as per the said Act. Accused No. 2 (Petitioner) and Accused No. 3 being the officers of the Company have failed to comply the above statutory requirements of section 220 of the Act, in spite of issuance of show cause notice by the complainant in that behalf and therefore accused Nos. 2 and 3 are the officers in default: within the meaning of Section 5 of the Act. The default commenced on 31-10-1999 and it is a continuing offence within the meaning of Section 472 Cr. P. C. The learned Magistrate took cognizance of the offence filed by the complainant in C. C. No. 387 of 2002 and issued process. Therefore, the petitioner moved this Court under Section 482 cr. P. C. for quashing the proceedings contending that he conducted the Annual General Meeting by 30-09-1996; 30-09-1997; 30-09-1998; 30-09-1999; 30-09-2000; 30-09-2001 for financial year ending 31-03-1996; 31-03-1997; 31-03-1998; 31-03-1999; 31-03-2000 and 31-03-2001 and the limitation period expired by 31-03-197 ; 31-03-1998; 31-03-1999; 31-03-2000; 31-03-2001 and 31-03-2002 respectively. The above complaints, which have been filed in September, 2002 are, therefore, barred by limitation. The above complaints, which have been filed in September, 2002 are, therefore, barred by limitation. been expressed in relation thereto by the Apex Court, both the counsel are unable to place before the Court any such decision. The question whether the offences of this nature would fall within the meaning of "continuing offence" or not would be arising quite often in several matters, it would be appropriate to refer the matter to an appropriate Division Bench to decide the question. ( 2 ) THE reference of the aforesaid question to this Bench was necessitated on account of seeming conflict between the views expressed by two learned single Judges of this Court in crl. P. No. 5518 of 2002 and Crl. P. No. 5538 of 2002 on one hand and the view expressed in KREBA BIOCHEMICALS LIMITED v. REGISTRAR OF COMPANIES, HYD. 2002 (2) AI. D (Crl.) 227 (AP); g. VIJAYALAKSHMI v. SECURITIES AND EXCHANGE BOARD OF INDIA 2000 (1)ALT (Crl.) 549 (AP), the division Bench of Calcutta in NATIONAL COTTON MILLS v. ASSISTANT REGISTRAR OF COMPANIES (Cal.)1984 (56) Company Cases 222 and single judge judgment of the Karnataka High Court in CHANDRA spinning and WEAVING MILLS (P) LIMITED v. REGISTRAR of COMPANIES1990 (69) Company Cases I I 7 on the other. We may vivify the discussion by quoting the provisions of direct concerned in this case. They are: Sections 162 and 220 of the Act and Section 472 of Cr. P. C. , which read thus : section 162: "s. 162. Penalty and interpretation: (1) If a company fails to comply with any of the provisions contained in sections 159, 160 or 161. the company, and every officer of the company, who in default, shall he punishable with fine which may extent to fifty rupees for every day during which the default continues. (2) For the purpose of this section and sections 159. 160 and 161. the expressions 'officer' and "director" shall include any person in accordance with whose directions or instructions the board of directors of the company is accustomed to act. " Section 220: 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 a company at an annual general meeting as aforesaid. " Section 220: 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 a company 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 clays 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. 4040. [***] 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 : [provided that in the case of a private company, copies of the balance sheet and copies of the profit and loss account shall be filed with the Registrar separately :] (Provided further that,- (i) in the case of a private company which is not a subsidiary of a public company, or (ii) in the case of a private company of which the entire paid-up share capital is held by one or more bodies corporate incorporated outside India, or (iii) in the case of a company which becomes a public company by virtue of section 43a, if the Central government directs that il is not in the public interest that any person other than a member of the company shall be entitled to inspect or obtain copies of, the profit and loss account of the company, no person other than a member of the company concerned shall be entitled no inspect, or obtain copies of the profit and loss account of that company under section 610. ] (2) If the annual general meeting of a company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, or is adjourned without adopting the balance sheet] 4545. Inserted by the companies (Amendment) Act, 1977. ] (2) If the annual general meeting of a company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, or is adjourned without adopting the balance sheet] 4545. Inserted by the companies (Amendment) Act, 1977. [ or, if the annual general meeting of a company for any year has not been held,] a statement of that fact and of the reasons therefor shall be annexed to the balance sheet and to the copies thereof required to be filed with the registrar. (3) 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. Section 472 Cr. P. C. Continuing offence: In the case of a continuing offence, afresh period of limitation shall begin to run at every moment of the time during which the offence continues. " ( 3 ) A reading of Section 162 of the Act makes it clear that if a company fails to comply with any of the provisions contained in sections 159, 160 or 161, which enjoining of filing annual return and other documents within 60 days from the date on which the Annual General Meeting is held, the company, and every officer of the company who is in default, shall be punishable with fine which may extent to fifty rupees for every day during which the default continues. ( 4 ) VIOLATION of Section 159 of the Act is also made liable under Section 162 and section 159 of the Act makes it obligatory on the part of the Company to prepare and file with the Registrar a return containing the particulars specified in Part I of Schedule v regarding the various items enumerated thereunder. The failure to comply with any of the provisions contained under the act attracts penal provision. The failure to comply with any of the provisions contained under the act attracts penal provision. ( 5 ) LEARNED counsel for the petitioner would contend that the offence for which the petitioner was charge sheeted is not a continuing offence; that the balance sheet should be laid before the Annual General Meeting, if not laid before the meeting, the same has to be filed before the complainant within 30 days from the date on or before which the Annual General meeting should have been held. The offence, if any, is complete on expiry of such date to be filed. The present complaint is filed nearly after three years, which is barred by limitation. To substantiate his submission he placed reliance on the judgments aforementioned, which were sought to be relied before the learned single Judge. ( 6 ) IT is appropriate to consider the submissions in the light of the judgments on which reliance is placed. In KREBA BIOCHEMICALS LIMITED (1 supra) failure to transfer unpaid dividend to special account within time stipulated under Section 205-A (1) of the Companies Act, which provides punishment of fine, was the subject matter of challenge. This court quashed the proceedings on the ground that the complaint was filed beyond the period of limitation. In the case of G. VIJAYALAKSHMI (2 supra) the directors were prosecuted for contravention of Section 73 (2) (B)and 113 (2) of the Companies Act in which Company was arrayed as A1 and its Managing Director was arrayed as A2. This Court quashed the proceedings holding that a reading of the relevant provisions including the definition of the "officer who is in default" as given in Section 5 would make it amply clear that the criminal liability of ordinary Directors would arise only in respect of a Company which has no Managing Director or a whole time director or a Manager and where particular Directors are not specified to be liable by the company. Both the cases on which reliance is placed are not on the point. Both the cases on which reliance is placed are not on the point. ( 7 ) IN CHANDRA SPINNING and WEAVING MILLS case (4 supra) a learned single Judge of the Karnataka High court after following the Division Bench judgment of the Calcutta High court in NATIONAL COTTON MILLS (3 supra) and the language of Section 220 (1), which creates an obligation and the purpose which is intended to be achieved by constituting the omission or default as an offence, held that the contravention of section 220 (1) made punishable under Section 220 (3) of the Act is not a continuing contravention and accordingly allowed the criminal revision petition and set aside the order of convictions and sentences passed against the Company (A1) and its Directors (A2 to A4 ). The Division Bench of the Calcutta High Court in national Cotton Mills (3 supra) held that an offence under section 162 of the Act is not a continuing offence within the meaning of Section 472 Cr. P. C. Cr. P. C. and, therefore, complaint is barred by limitation under Section 468 Cr. P. C. The Division bench appears to have mainly relied on the judgment of the supreme Court in STATE OF BIHAR v. DEOKARAN NENSHI AIR l973 SC 908 and also its two earlier decisions in WIRE MACHINERY v. STATE (l978) CHN 293 (C'al.) and krishnakumar v. STATE (1981)2 CHN 301. In both the cases offence was for failure to deposit the employers contribution within the time prescribed under the Employees' Provident Fund and Miscellaneous Act. ( 8 ) IN the case of DEOKARAN NENSHI (5 supra) the issue before the Supreme Court was whether failure to submit return within the prescribed time under the Mines Act is a continuing offence or not. The Supreme Court after considering the various judicial pronouncements including that of Privy council tried to summarize what a "continuing offence" is : "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. 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 occasioned 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 in committed once and for all. " ( 9 ) THE Supreme Court in BHAGIRATH KANORIA v. STATE OF M. P. AIR 1984 SC 1688 after referring five precedents: three English and two Indian and also its earlier judgment in DEOKARAN nenshi (5 supra) held that offence of non-payment of the employer's contribution to the Provident Fund before the due date is a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code cannot have any application. The offence alleged, namely, non-payment of the employer's contribution to the Provident Fund Commissioner before the due date will be governed by Section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues. It was further held that decision in DEOKARAN NENSHI "must be confined" to such cases only, that is, cases where such default in submitting the return has been made penal, but the penal liability has not been continued so long as the default continues. The learned single Judge while referring the matter to the Division Bench referred to the orders passed in crl. P. Nos. 5518 and 5538 of 2002 on which reliance is placed by the respondent-counsel for the proposition that the offence alleged is a continuing offence and question of bar of limitation is not applicable. ( 10 ) IN Crl. The learned single Judge while referring the matter to the Division Bench referred to the orders passed in crl. P. Nos. 5518 and 5538 of 2002 on which reliance is placed by the respondent-counsel for the proposition that the offence alleged is a continuing offence and question of bar of limitation is not applicable. ( 10 ) IN Crl. P. No. 5518 of 2002 dated 08-03-2006 the question was whether the director who has resigned can be prosecuted for the offence alleged under the Companies Act and this court felt that the offence said to have been committed prior to the alleged designation and, therefore, petitioner cannot take defense of the so-called resignation as director and refused to quash the proceedings against him. Similarly, in Crl. P. No. 5538 of 2002 dated 17-03-2006 this court refused to quash the proceedings initiated at the instance of A3 (director) for the offence punishable under Sections 162, 168 and 220 of the companies Act on the ground that whether the complaint is barred by limitation, since the offence alleged against the petitioner is punishable with fine only, can be decided by the trial court on the evidence let in by the parties. But there is no indicative of holding this court it is a continuing offence and proceedings cannot be quashed. It is appropriate to notice another Division Bench of the Calcutta High Court in LAXMI PRINTING WORKS v. ASST. REGISTRAR OF COMPANIES (Cal.)1990 (60) Company Cases 443 had an occasion to consider whether the prosecution launched and process issued for the offences punishable under Sections 162 (1) and 220 (3) of the Companies Act are "continuing offences" within the meaning of Section 472 Cr. REGISTRAR OF COMPANIES (Cal.)1990 (60) Company Cases 443 had an occasion to consider whether the prosecution launched and process issued for the offences punishable under Sections 162 (1) and 220 (3) of the Companies Act are "continuing offences" within the meaning of Section 472 Cr. P. C. The Division Bench after considering the judgments of the Supreme Court in DEO KARAN NEN5hi (5 supra) and in BHAGIRATHI KANORIA (8 supra) held that the offence punishable under Section 162 (1) is a continuing offence and further held that the decision of the Division Bench in national COTTON MILLS (3 supra) can no longer be taken as good law particularly, in view of earlier Division Bench decisions in WIRE MACHINERY and KRISHNAKUMAR (6 and 7 supra) relied on in NATIONAL COTTON MILLS (3 supra) having been over turned by the Supreme Court, and the earlier decision of the supreme Court in DEO KARAN NENSHI (5 supra) referred to therein having been duly explained and distinguished by the supreme Court in BHAGIRATHI KANORIA's case. Further, a Division Bench of the Kerala High Court in rani JOSEPH v. REGISTRAR OF compnaies 1995 (I) KLT 14 after referring to the judgments in Chandra Spinning and Weaving Mills (4 supra) and National Cotton Mills (3 supra) affirmed the view taken by the same Court in SUDARSAN CHITS v. REGISTRAR of COMPANIES 1984 KLT 560 wherein it was held that the offence for violating the provisions of Section 220 of the Act can be treated as a continuing offence and so provisions of Section 468 of the code has no application and on that basis refused to quash a complaint pending before the trial court. ( 11 ) WE have gone through the judgments on which reliance is placed by the learned counsel for the petitioner. In view of subsequent judgment of the Supreme Court in bhagirathi KANORIA (8 supra), we cannot agree with the view expressed by the Calcutta and Karnataka High Courts in national COTTON MILLS and CHANDRA SPINNING and WEAVING mills respectively (3 and 4 supra), and we fully agree with the view taken by the latter Division Bench of the Calcutta High court in LAXMI PRINTING WORKS LTD. (9 supra) and the Kerala high Court in RANI JOSEPH (10 supra ). Once Section 162 (1) of the Act imposed penalty at the rate of Rs. (9 supra) and the Kerala high Court in RANI JOSEPH (10 supra ). Once Section 162 (1) of the Act imposed penalty at the rate of Rs. 50/- per every day till the default continues, it must be held default in complying with the provisions of Section 220 (1) of the Act is a continuing default covered by Section 472 Cr. P. C. Accordingly, we answer the reference as under : the contravention of Section 220 (1) of the Act made punishable under Section 220 (3) is a continuing offence and the period of limitation prescribed under Section 468 Cr. P. C. does not attract for the prosecution launched against the company for the offence alleged and is governed by Section 472 cr. P. C. .