National Cotton Mills & Ors. v. The Asstt. Registrar Of Companies, West Bengal & Anr.

B.C Chakrabarti, J.:—These revision cases arise out of as many cases under S. 159/162(1) of the Companies Act, 1956 on the complaints made by the Assistant Registrar of Companies, West Bengal alleging violation of the provisions of S. 159 of the Act. The petitioner company and some of its officers, obtained the present Rules for quashing the prosecutions pending against them in different Courts of Metropelitan Magistrate, Calcutta. The cases have been heard together and this order shall govern all of them.

2. Mr. Chakraborti appearing on behalf of the petitioners in all these cases Contends that the learned Magistrates erred in law in taking cogizance of the cases without examining the complaint or his witnesses, that the company had been previously given exemption from filing returns due to circumstances beyond their control on account of the Indo-Pak War, that the company is also entitled to exemption for subsequent periods as well, that the company is also entitled to relief under S. 633 of the Companies Act and that the prosecution in each case is barred by limitation.

3. The first point taken taken by, Mr. Chakraborti may be forthwith disposed of upon a reference to S. 200 of the Code of Criminal Procedure. The obligation on the part of a Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses proesent is dispensed with under the terms of the section when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties. In the instant case the complaimant is a public servant purporting to act as such.

4. The other point urged by Mr. Chakraborti really touches the merit of the prosecution and the possible defence of the petitioners. That is a question which may be conveniently considered at the trial if the proceedings ultimately turn out to be maintainable and competent. Section 633 may be invoked in appropriate cases by the Court if the conditions for granting the relief to the persons found guilty is made out. It may, however, be noted that the section cannot apply to the company itself in respect of any default on its part, but can apply to its officers. This however is a question which goes to the merit of the case and we do not propose to dwell at length on this aspect of the matter at this stage in exercise of our revisional jurisdiction.

5. Mr. Chakraborti, however, seems to have a stronger point in support of the prayer for quashing the proceedings. His contention in short is that all the proceedings are barred by limitation. In order to appreciate the point it may be useful to refer to the provisions of S. 159 and S. 162 of the Companies Act. Section 159 requires every company to file with the Registrar the particulars specified in the section in the form of a return within 60 days from the date on which the Annual General Meeting is held. The penal provision for failure to comply with the aforesaid provisions is S. 162 which reads as follows.

“S. 162. Penalty and Interpretation—(1). If a company fails to comply with any of the provisions contained in Ss. 159, 160 and 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.

(2) For the purpose of this, section and Ss. 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.”

6. The cases out of which the present revisional applications have arisen were filed on different dates in the month of November, 1978. The due date of filing of returns was 28th of November of different years from 1967 to 1977. Even the latest in point of time namely, Complaint Case No. 1968 of 1978 (Criminal Revision No. 922 of 1980) was initiated nearly one year after the due date expired, while the complaint in respect of the earliest default namely, complaint Case No. 1586 of 1978 was filed nearly 11 years thereafter.

7. The penalty for the default is only fine. Section 468 of the Code of Criminal Procedure provides that no Court shall take cognizance of an offence after the expiry of the period of limitation. The limitation for an offence punishable with fine only is 6 months. It is therefore contended by Mr. Chakraborti that the learned Magistrate could not have, in view of the bar of limitation, taken cognizance in these cases. Mr. Sengupta appearing on behalf of the opposite party on the other hand contends that the offence being a continuing offence the bar of limitation would not be attracted in these cases. The argument is founded upon the wording of S. 162 of the Companies Act which provides that the defaulting company and every officer thereof shall be punishable with fine for every day during which the default continues. Considerable emphasis was laid on the use of the expression ‘during which the default continues’. It is contended by Mr. Sengupta that the offence continues from day to day and is therefore a continuing one. Mr. Chakraborti on the other hand argues that the offence is complete as soon as the default in submitting the return is made. The provision for payment of fine on daily basis after the default, according to Mr. Chakraborti is only to ensure speedy submissions of return on pain of penalty for each day the default is not made good. This according to Mr. Chakraborty does not render the default a continuing offence.

8. In the first place Mr. Sengupta referred to the case of G.D Bhatta v. The State AIR 1957 Cal. 483 in support of his contention. There the question involved was whether an illegal omission to comply with certain statutory requirement namely, the pit head baths and mines creches was a continuing offence or not. It was held that the mere fact that the specified date within which the baths and the creches were required to be constructed expired would not possibly mean that the duty of the owner ended with the expiry of the date. If a duty continues from day to day the non-performance of that duty from day to day is a continuing wrong. The very nature of the omission amounting to the wrong in that case is entirely different from the wrong alleged in the cases before us.

9. The case of State of Bihar v. Deokaran, AIR 1973 SC 908 seems to be more to the point. That was a case under the Mines Act. Section 66 of the A provides that any person omitting inter alia, to furnish any return in the prescribed form at or within the prescribed time shall be punishable with fine which may extend to rupees one thousand. Section 79 lays down that no Court shall take cognizance of any offence under this Act, unless a complaint has been made within 6 months from the date on which an offence is alleged to have been committed. The explanation to the Section provides that if an offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. In that case the complaint was filed more than 6 months after the default. The question that fell for consideration was whether the offence was a continuing one or not so that the explanation to S. 79 might be invoked. It was observed that continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It was held that the offence was complete on the owner failing to furnish the annual return by the date prescribed. Continued disobedience or non compliance was not made an offence under the regulation under which the prosecution was started. In that view of the matter, the complaint was found to be time barred.

10. In the case of Wire Machinery v. The State 1978 CHN 293 similarly a complaint under the Employees' Provident Funds and Family Pension Funds Act filed more than a year after the offence was committed was found to be barred under S. 468 of the Code of Criminal Procedure. The provision for penalising a defaulting employer with day to day fine until the deposit is made good, it was held, does not make the initial infringement a continuing offence.

11. In the next case cited by Mr. Sengupta, United Savings & Finance Company v. Deputy Chief Officer, Reserve Bank of India, 1980 Crl. Law Journal 607 the prosecution under S. 58B(2) of the Reserve Bank of India Act. The section makes a person failing to produce any book, account or other documents or to furnish any statement, information or particulars which under the Act, it is his duty to produce or furnish punishable with fine which may extend to two thousand rupees in respect of each offence and “if he persists in such failure or refusal, with further fine which may extend to “one thousand rupees for every day, after the first during which the offence continues”. In view of the language of the section quoted above it was held that the offence was a continuing offence. There is nothing in S. 159 of the Companies Act which provides for continuance of the offence in case the offender persists in disobeying the requirement. It cannot be disputed even on the authority of this decision that the offence is complete once the default is made. The absence of any specific provision as in S. 58B(2) of the Reserve Bank of India Act distinguishes that case from the cases before us.

12. The next case cited, Krishna Kumar v. State 1981 (2) CHN 130 is a case under the Employees Provident Funds and Family Pension Act and follows the decision in Wire Machinery v. The State (supra).

13. Finally, Mr. Sengupta referred to a single Bench decision of this Court in the case of Ajit Kumar Sarkar v. Assistant Registrar Of Companies 108 in which case the question whether an offence under S. 159/162 of the Companies Act is a continuing offence or not came to be considered. It was held that the liability to furnish the return under S. 159 continues until it is complied with and each day's failure is visited with penalty. This however, is the onle decision dealing with the identical question before us.

15. On careful review of the legal position, it is difficult for us to agree with the view expressed by a learned Single Judge in the above case. As pointed out by the Supreme Court, 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’. 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-fulfillment of a continuing obligation or continuing of business without filing of such returns becomes a continuing offence. When S. 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 S. 159 under the threat of enhanced penalty and getting relief from such penalty on enhancing scale by early submission of returns even after the default. That does not render the initial default a continuous one. It cannot be said that the offence is repeated or committed from day to day after the initial default. It is only where the offence is committed from day to day or repeated from day to day that it can be called a continuing offence. There being no express provision in Section 162 in that behalf as there are in Ss. 234, 598 etc. of the Companies Act it will not be proper to hold that the offence under S. 162 is a continuing offence. When the statute itself provides for continuance of offence irrespective of initial default in some cases but does not make similar provisions in respect of some other offences, it would not be correct to say that the latter class of cases also would be continuing offences.

14. That being our view, we respectfully disagree with the view expressed in the case of A.K Sarkar v. Assistant Registrar Companies (supra). Accordingly we hold that the cognizance all these cases was bad in view of the bar of limitation and S. 468 Cr. P.C and the pending proceedings are liable to be quashed.

The Rules are accordingly made absolute.

Jitendra Nath Chaudhuri, J.—I agree.

Rules made absolute.