1. These appeals have been filed by the Provident Fund Inspector, Quilon, who was the complainant, from the judgments of the Chief Judicial Magistrate, Quilon, in four cases acquitting the accused respondents. The first accused is a company, and accused 2 to 5 were its directors. The four complaints were of the same pattern and were instituted under the Employees' Provident Funds and Miscellaneous Provisions Act (the Act). The company runs a mill which is an establishment within the Act. In brief the complaints alleged that the accused were guilty of the offences under Ss. 14(1 A), 14(2), 14(2A) and 14A(1) of the Act in that they had not paid the employers' and employees' contributions to the provident fund in respect of the employees of first accused-company together with the administrative charges for the periods specified. Each complaint related to three offences and the total twelve offences were stated to have been committed on 15 May 1971 and the 15th of the succeeding months till 15 May 1972 except October 1971. The complaints were brought on 9 September 1975, on the strength of the sanction granted by the Provident Fund Commissioner on 13 July 1975 under S. 14 A.C Under Paras. 30 and 38 of the Employees' Provident Funds Scheme, 1952 the employer's and employees' contributions as well as the administrative charges for every month have to be paid within fifteen days of the close of the month. (That explains the statement in the complaints that the offences were committed on the 15th of the months mentioned, the liability being related to the respective preceding months). Accused 2 to 5 were sought to be made liable on the footing that as directors they were in charge of and responsible to the company and that the offences were committed with their consent or connivance or were attributable to their neglect.

2. The accused pleaded not guilty and before evidence was recorded they raised an objection that ex facie the complaints were barred by limitation. The Court heard it as a preliminary question with the consent of the prosecution, the prosecutor agreeing that if the question was answered in favour of the accused, they would have to be acquitted. Although the reasoning of the Court below is not quite clear, it upheld the defence of limitation and by separate judgments acquitted the accused.

3. In view of the identity of the parties and the points involved, all the appeals admit of convenient disposal by a common judgment.

4. Section 468(2) of the Code of Criminal Procedure (Code) prescribes three periods of limitation for criminal prosecutions depending on the nature and extent of the punishment. Clause (b) lays down a period of one year where the offence is punishable with imprisonment for a term not exceeding one year. Section 14 of the Act stipulates the penalties, and the punishments prescribed are such that they fall within the limits of S. 468(2)(b) of the code. This means that the complaints should be filed within one year of the offences and that those filed thereafter would be barred within S. 468(1) of the code which prohibits Courts from taking cognizance of time-barred offences. Section 469 of the code deals with the commencement of the period of limitation and under Cl. (a) which alone is relevant the period of limitation commences on the date of the offence. Sections 470 and 471 of the code which prescribe exclusion of time can be left out as they have no application. Section 472 on which the appellant strongly relies reads:

“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 offence continues.

5. While counsel for the respondents contend that if they had contravened the Act and the scheme, the relative offences occurred on the dates in 1971 and 1972 mentioned in the complaints and that consequently the prosecutions which were started only in 1975 are clearly time-barred. The learned Additional Central Government Pleader maintains that the offences were “continuing offences” within S. 472 of the code and that as the offences were not committed once and for all on those dates but continued every day the accused defaulted the payment of contributions and administrative charges the bar of S. 468 was excluded.

6. Now as noticed above the accused were bound to make the payment for every month within the 15th day of the following month. The actus reus is this default which occurs on the specified date, viz., the 15th day after the month to which the liability relates. The fixation of a time for payment and the imposition of a penalty for the omission to pay within that time are of crucial significance, for by such omission the offence would be committed once and for all. If the Act and the scheme had not imported any time element it might have been possible to agree with the appellant, for then the offence would have been a mere default in not paying the contributions but not paying them within a particular time. As the offence is the omission to make the payment within a particular time it was committed once and for all; but for the time element the act constituting the offence would continue to be done so long as the obligation to make the payment continued, for a mere omission to do a thing — not to do it within a particular time — is a continuing act. As it is the offence consists in the omission to pay within a particular time and not the mere omission to pay. And that makes all the difference. The continuance of the obligation to pay even after the prescribed date and the fact that the payment of the amounts and even damages could be enforced against the defaulters under other provisions of the Act does not make the default a continuing offence. The appellant's contention mixes the criminal and civil liability; while the former is incurred once and for all on the date of defaults the latter continues even after that date. It is also significant that the Act does not provide that the offence is a continuing offence such as is provided in Ss. 92 and 102, Factories Act, 1948, Ss. 162 and 272, Companies Act, 1956, etc. If the offence was committed once for all on the dates of default time began to run from those dates which were in 1971 and 1972 and the complaints instituted in 1975 cannot escape the bar under S. 468(1) of the code.

7. Turning to case law, I shall start with State of Bihar v. Deokaran [(1972) 2 SCC 890: A.I.R 1973 S.C 908]. Under the Mines Act and regulations the owner, agent or manager of every mine is required to forward to the District Magistrate and to the Chief Inspector annual returns in respect of the preceding year, on or before the 21 January in each year. Omission to furnish the returns, etc., within the prescribed time is punishable under S. 66 of the Mines Act. Under S. 79 of the Act the criminal complaint for such an offence is to be filed within six months from the date on which the offence was committed or within six months from the date on which the commission of the offence came to the knowledge of the Inspector, whichever is later. The explanation to the section provides that if the offence is a continuing offence the period of limitation shall be computed with reference to every point of time during which the offence continues. The respondents who were owners of a quarry failed to furnish the annual returns for the year 1959 by 21 January 1960. A criminal complaint was thereupon filed on 12 April 1961. The question that was considered by the Supreme Court was whether the complaint which was instituted more than six months after 21 January 1960 was barred by limitation under the substantive part of S. 79 or whether it was a continuing offence which was saved by the explanation thereto. The Supreme Court pointed out that under the relevant regulation the infringement or offence occurred on 21 January and was complete on the owner failing to furnish the annual returns by that day. It was held:

“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 byelaw 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 returns 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.”

In the course of the judgment their Lordships explained the distinction between a continuing offence and an offence which is committed once and for all, in these terms:

“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 constitutes an offence once and for all and 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.

The Supreme Court ultimately held that the complaint was time-barred as the offence fell within the substantive part of S. 79 and not under the explanation thereto.

8. In view of this pronouncement it is unnecessary to discuss the cases which were approvingly noticed by their Lordships like A.I.R 1942 Bom. 326 and A.I.R 1955 Bom. 161. The offences in the present prosecutions were committed once and for all on the 15th of the months specified in the complaint when the defaults in the payment were committed, just as the offence in the case before the Supreme Court was committed on 21 January 1960. It follows that the complaints which were filed on 9 September 1975, are clearly barred by limitation and are not saved by S. 472 of the code.

9. It only remains to refer to certain decisions on the Act itself which were brought to my notice by counsel for the respondents. In Pankaja Mills, Ltd. v. Provident Fund Inspector [1977 I L.L.N 186], the Madras High Court held that non-payment of contributions and administrative charges is not a continuing offence. This case was followed and the same view was taken by the Bombay High Court in S.V Lachurni v. K.C Parikh [1978 L.&I.C 868]. The same view has also commended itself to the Calcutta High Court in Wire Machinary Manufacturing Corporation v. State [(1979) 49 Comp. Cases 197]. All those cases have followed the principle laid down by the Supreme Court in State of Bihar case [(1972) 2 SCC 890: A.I.R 1973 S.C 908] (vide supra).

10. On the conclusion that the complaints are barred by limitation under S. 468 of the code, there is no need to deal with the respondent's alternative contention that accused 2 to 5 had ceased to be directors so early as 14 July 1972, when the mills were taken over by the Government and they are not, therefore, liable to prosecution.

11. The judgment of the Court below are confirmed and the appeals are dismissed.