9911796707
TMI Blog1984 (3) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... p to September 30, 1977, to the office of the complainant though the same ought to have been filed with the complainant on or before November 28, 1977, and the default alleged is the non-compliance with the provisions of sections 159 and 162 of the Companies Act, 1956, the other proceedings were commenced for non-compliance of section 220(1) of the Companies Act. In this writ petition, the petitioner prays for quashing of the proceedings and canvasses in support of the application, only the bar of limitation. Before adverting to the question of limitation, the relevant provisions of the Companies Act should be considered. Section 159 of the Companies Act provides that every company having a share capital shall, within sixty days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 159, section 160 or section 161 of the Companies Act. Section 468 of the Cr. PC prescribes the period of limitation and provides that for offences punishable with fine, the period of limitation would be six months from the date of accrual of the right to prosecute. The right to prosecute in this case accrued on November 28, 1977. Admittedly, the complaint was filed on June 25, 1982, which is beyond the period of six months. Mr. P. C. Sen, appearing on behalf of the Registrar of Companies, contended that the offence is continuing in nature. Mr. Sen submitted that the language used in section 161(1), namely, "during which default continues", makes the position very clear in regard to continuity and a fine of Rs. 50 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s committed once and for all. The Supreme Court, in the aforesaid decision, further observed that as in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made. The said decision of the Supreme Court was considered by the Division Bench of this court in the matter of Wire Machinery Manufacturing Corporation Ltd, v. State [1978] Cal. HN 293 ; [1979]49 Comp. Cas. 197 (Cal.). In that case, the petitioners were being prosecuted in the Court of the Metropolitan Magistrate, 7th Court, Calcutta, under the provisions of sections 14(1A), 14(2), 14A(1) and 14AA of the Employees' Provident Funds and Family Pension Fund Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liability for which continues until the rule or its requirement is obeyed or complied with. The court observed that 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-fulfilment of a continuing obligation or continuing of business without filing of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) of section 372 expressly provides that if a default is made in complying with the provisions of sub-sections (6) and (7) of section 372, the company and other officers of the company, who are in default, shall be penalised with a fine which may extend to Rs. 500 and also with a further fine which may extend to Rs. 50 for every day after the first day during which the default continues. The section, by its term, indicates that the penalty may extend to a period even after the initial default so long as the default continues. Mr. Sen, however, "contended strongly that the expression" during which the default continues also appears in section 162 and, as such, the offence under section 162(1) is a continuing offence. I am, however, unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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