2010 (3) TMI 671 - HC - Companies Law

Winding up - Statement of affairs to be made to Official Liquidator - Held that - Offence of non-filing of statement of affairs as required under section 454 (1) and (2) as per time stipulated under section 454(3) is a continuing offence under section 454(5) and it terminates only on filing of statement of affairs; that being so, under sub-section (5) of section 454, punishable with imprisonment or fine for every day during which the default continues - as a result whereof, section 472 CrPC would be attracted in the facts of instant case. Consequently, preliminary objection raised by counsel for respondents in regard to maintainability of the complaint is overruled and stands rejected. Respondents are directed to appear in person before this Court on 8-4-2010.

Summary

Issues:
- Filing of complaint under section 454 of the Companies Act after the expiry of the limitation period as per section 468 of the CrPC.
- Whether the act of default alleged in the complaint is a continuing offence under section 472 of the CrPC.
- Interpretation and application of sections 454(5) and (5A) of the Companies Act regarding the punishment for non-compliance with the statement of affairs filing requirement.

Analysis:
1. The case involved a complaint filed under section 454 of the Companies Act by the Official Liquidator against ex-directors of a company for failing to file the statement of affairs within the prescribed time. The respondents raised a preliminary objection citing the expiry of the limitation period under section 468 of the CrPC, contending that the complaint was not maintainable. The complainant argued that the act of default alleged in the complaint was a continuing offence and thus section 472 of the CrPC would apply.

2. The Court considered the provisions of section 454 of the Companies Act, which require persons to file their statement of affairs within a specified period after the winding up order. The relevant sections 454(5) and (5A) of the Companies Act prescribe punishment for default, including imprisonment or fine for each day of default. The Court noted that the offence of non-filing of the statement of affairs is a continuing offence under section 454(5) and terminates only upon filing, attracting section 472 of the CrPC.

3. The Court referred to a judgment by the Delhi High Court in a similar case, emphasizing that the offence of non-filing of the statement of affairs is a continuing one. The Court also addressed the judgment relied upon by the respondents, stating that it was of no assistance as it had been overruled by the Apex Court. The Court concluded that the offence under section 454(5) of the Companies Act is indeed a continuing one, rejecting the preliminary objection raised by the respondents regarding the maintainability of the complaint.

4. In the final decision, the Court overruled the preliminary objection and directed the respondents to appear before the Court. The judgment clarified the interpretation and application of sections 454(5) and (5A) of the Companies Act, establishing that the offence of non-compliance with the statement of affairs filing requirement is a continuing offence punishable under the relevant provisions, thereby upholding the maintainability of the complaint filed by the Official Liquidator.