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TMI Blog1978 (6) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... f the business was entrusted to his elder brother, Rajendra Nath Sarkar, one of the directors of the said company, as the petitioner had to manage another business as managing agent/contractor of a small colliery at Asansol and he was so engaged during the period 1954 to 1960. The petitioner would come to Calcutta on casual visits and then he enquired from his brothers about the functioning of the business at Calcutta and being assured by his brothers that the company was functioning smoothly and the statutory compliances were being regularly and timely made and relying upon such statements and assurances the petitioner did not make any further enquiry. After 1960, due to inundation by flood of the colliery, the business at Asansol had to be closed and the petitioner came to reside permanently in Calcutta. It is then that he began taking interest in the business of the company but his brothers refused to give him any access to the books of accounts, documents, papers and to the management of the company and declined to disclose any account and/or particulars about the affairs of the company during the period 1954 to 1960. In the meantime, serious disputes also arose amongst the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (3798 to 3813 of 1969). In each of the said complaints, there was a statement that the offences for violation of sections 159 and 162 of the Companies Act are continuing offences and hence the complaints are not barred by limitation as provided under sections 468 and 469(1)( b ) of the Code of Criminal Procedure as the offences complained of were for non-filing of annual returns within 60 days from holding of the annual general meeting and the default having continued till this date the complaints are within time. In these complaints, there is no averment as to when the annual general meeting should have been held and on what date the returns ought to have been filed. The only allegation is that the annual general meeting ought to have been held by "due date" and the annual returns ought to have been filed "in time". Several points of law have been raised in these cases for quashing the proceedings that are pending before the learned Metropolitan Magistrate, Calcutta. The first and foremost point raised is that the offences are not continuing ones as stated in the petitions of complaint. Secondly, in the absence of specific averments regarding the dates of the annual general m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har Ram Narayan v. Corporation of Calcutta. That was a case under section 385(1) read with section 488(2) of the Calcutta Municipal Act, 1923 (III B.C. of 1923). In that case, the petitioner set up a flour mill in a room at premises No. 139/1, Russa Road, intending to work it by electricity without the previous written permission of the Corporation and was convicted under section 385(1) read with section 488(1) of the Calcutta Municipal Act and was sentenced to pay a fine of Rs. 10. Since the said conviction the accused, to quote the words of the Sanitary Officer, "worked the mill from the 1st April onwards". That officer further deposed thus: "I inspected the mill in May and I found it working. After the last conviction the accused did not apply for permission under section 385 nor has he got any. If the accused had applied, the permission would have been refused as the site and locality are unsuitable for the working of an electrical mill. The accused was prosecuted for violation of section 385(1) read with section 488(2) of the Act for a period of 30 days commencing from the 1st April, 1927, and was sentenced to pay a daily fine of Rs. 10, i.e ., an aggregate fine Rs. 300. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated in the Calcutta Municipal Act. I, accordingly, hold that the offences under sections 159 and 160 of the Companies Act are continuing offences and, therefore, the bar imposed under section 468 of the Criminal Procedure Code does not operate in the present cases. The case referred to by the petitioner's advocate reported in [1978] Calcutta High Court Notes page 293(2) ( Wrie Machinery Manufacturing Corpn. Ltd. v. State ) related to the offences under the Provident Funds Act, where there is a provision for daily fine if the default continues after conviction, and an order is made by the Magistrate to deposit the amount of contribution after conviction. That case has no bearing to the facts of the present case. In this connection as to what is a continuing offence has been explained in the decision reported in AIR 1957 Cal. 483 ( G. D. Bhattar v. State ) . A continuing wrong or a continuing offence is after all, a continuing breach of a duty which itself is continuing. If a duty continues from day-to-day, the non-performance of that duty from day-to-day is a continuing wrong. The contention that the continuance of the offence contemplated under section 73 of the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Section 162 of the Companies Act is conspicuous by the absence of such expression as "every day that the breach continues after conviction" as provided under section 29 of the Industrial Disputes Act, 1947, and in section 14A of the Provident Fund and Family Pension Fund Act, 1952, such words as " where the order has not been complied with." There is no express provision in regulation 3 or in any other provision in the Mines Act or the Regulations, which renders the continued non-compliance an offence until its requirement is carried out as in the Companies Act. Moreover continued contravention after conviction has no connection with the question of limitation. In this connection, the case of Public Prosecutor v. B. V. A. Lury Co., AIR 1942 Mad. 75, 76, may be referred to. The present cases were filed for defaults made for the financial years ending 1962 to 1967 on 27th December, 1969. The learned Magistrate on May 9, 1975, released the accused persons and stopped the proceedings in view of the Division Bench judgment of this Hon'ble court in Brahmanand Goyal v. N. C. Chakrdborty [1975] 79 CWN 601 followed in Jitendra Nath Mitra v. State of West Bengal, the latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistering companies under this Act". Stress is laid on the conjunction "or". If the Registrar includes an Assistant Registrar, the conjunction "or" would not be before the words "Assistant Registrar" only, the conjunction would be "and". Under the regulations the duty of registering companies is left only to the Registrar and as the Registrar includes an Additional, Joint and Deputy Registrar they may file petitions of complaint under the Act but not so the Assistant Registrar who has not been authorised with the duties of registering companies under the Act or the Regulations. Therefore, the petitioner argues that the complaint having been filed by the Assistant Registrar who is incompetent to do so, the prosecution should fail on that ground alone. The petitioner has cited a case reported in [1910] 8 Indian Cases 190 ( Emperor v. Sela Shib Das ) , wherein it has been held that under the regulations framed by the Local Government under section 220( b ) of the Act VI of 1882, the Registrar is the only officer authorised for instituting and conducting all prosecutions under the Act, specially where the prosecutions are in connection with breach of the rules relating to submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner the present proceedings cannot go on. That the company is a necessary party goes without saying. Only if the company is convicted the others may be convicted as the directors derive their liability from the company. Hence, the company is a necessary party and the prosecution should be conducted only in the presence of the company, as accused. Further, it is contended by the petitioner that the petition of complaint is liable to be quashed on the ground that there is no specific averment in it as to the officers who are in default apart from the company. In this connection, my attention has been drawn to section 5 of the Companies Act wherein "officer in default" has been denned and explained. It means "an officer who is knowingly guilty of default". In section 162 of the Companies Act it is provided that "the company and every officer of the company who is in default shall be punishable" which is further clarified in section 162(2) that the expression "officer" shall include "any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act". Here it was incumbent on the prosecution to fix the liability wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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