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2014 DIGILAW 4282 (MAD)

S. Govind Rajan v. M. O. Roy

2014-11-17

S.NAGAMUTHU

body2014
Judgment 1. The petitioners are accused in E.O.C.C.No.123 of 2006 on the file of the learned Addl. Chief Metropolitan Magistrate E.O.II, Egmore, Chennai. The respondent is the complainant in the case. The respondent has filed the said private complaint alleging that the petitioners have committed offence punishable under Section 383(1A) of the Companies Act, which states that a company shall have a whole-time Company Secretary and if the company fails to comply with the same, 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. Here in this case, according to the petitioners, the complaint was not launched within a period of six months from the date of commission of the offence and therefore the complaint is liable to be quashed. 2. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent as well as perused the records carefully. 3. In the counter filed by the respondent it is stated that the complaint was filed within the period of limitation and so it is not barred by limitation. According to the respondent, commission of the offence came to light on 2003 and thereafter the investigation was immediately undertaken. But a stay was granted by the Court on 23.10.2003 and on an application to vacate the stay was filed, this Court vacated the stay on 27.04.2005. Immediately after 27.04.2005, the investigation has been taken up and a report was drawn only on 01.12.2005. Thereafter, the Central Government gave permission to launch prosecution only on 01.05.2006. It is further stated that within six months from 01.05.2006, the present complaint has been filed and thus it is not barred by limitation. 4. I have considered the above submissions. 5. In this case, the post of full time Company Secretary was laying vacant from 26.09.2002. But in Form 32, produced by the petitioner, it is shown that one Mr.Shreenivasan was so appointed on 01.11.2005. Therefore, within six months from 01.11.2005 the complaint should have been filed. But in this case, the complaint was launched only in August, 2006, thus in my considered opinion, the complaint is barred by limitation. 6. But in Form 32, produced by the petitioner, it is shown that one Mr.Shreenivasan was so appointed on 01.11.2005. Therefore, within six months from 01.11.2005 the complaint should have been filed. But in this case, the complaint was launched only in August, 2006, thus in my considered opinion, the complaint is barred by limitation. 6. The learned counsel appearing for the respondent would however submit that the time taken to get permission from the Central Government has to be excluded while computing the period of limitation as per Section 470(3) of the Code of Criminal Procedure. For better understanding, let us look into the said provision, which reads as follows: “Section 470(3): Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, than, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.—In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.” 7. Referring to the said provision, the learned counsel submitted that in the instant case, the Central Government gave permission only on 01.05.2006 and the complaint was launched within six months from the said date and thus the complaint is not barred by limitation. 8. In my considered opinion, the said contention cannot be accepted at all. The consent or sanction as has been referred to in sub-clause 3 of Section 470 of Cr.P.C. relates to consent or sanction which is obtained under the Statute itself. Here in this case, to prosecute a person for offence punishable under Section 383(1A) of the Companies Act, neither any consent nor any sanction from the Central Government is required. The consent or sanction as has been referred to in sub-clause 3 of Section 470 of Cr.P.C. relates to consent or sanction which is obtained under the Statute itself. Here in this case, to prosecute a person for offence punishable under Section 383(1A) of the Companies Act, neither any consent nor any sanction from the Central Government is required. It may be true that on the administrative side permission is obtained from the Central Government to launch prosecution, but that permission cannot be equated to a consent or sanction to be obtained statutorily as referred to under subsection 3 of Section 470 of the Cr.P.C. Therefore, this period cannot be excluded at all from the period of limitation. If it is done, obviously the complaint is barred by limitation because the complaint was not launched within six months atleast from 27.04.2005, the day when stay order was vacated. 9. Admittedly the complaint was launched only in the year 2006, thus the prosecution is barred by limitation. Therefore, the proceedings is liable to be quashed. 10. In the result, the petition is allowed and the proceedings in E.O.C.C.No.123 of 2006 on the file of the learned Addl. Chief Metropolitan Magistrate E.O.II, Egmore, Chennai is quashed. Consequently, the connected miscellaneous petitions are closed.