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TMI Blog1983 (5) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... of default under section 421, Companies Act. 1. 778/81 1875/77 1-7-67 to 31-12-67 2. 747/81 1881/77 1-1-68 to 30-6-68 3. (CR) 93/81 1833/77 1-7-68 to 31-12-68 4. 779/81 1876/77 1-1-69 to 30-6-69 5. 751/81 1873/77 1-7-69 to 31-12-69 6. 726/81 1830/77 1-1-70 to 30-6-70 7. 756/81 1831/77 1-7-70 to 31-12-70 8. 755/81 1832/77 1-1-71 to 30-6-71 9. 748/81 1877/77 1-7-71 to 31-12-71 10. (CR) 26/81 2830/77 1-1-72 to 30-6-72 11. 780/81 1882/77 1-7-72 to 31-12-72 12. 749/81 1872/77 1-1-73 to 30-6-73 13. 754/81 1879/77 1-7-73 to 31-12-73 14. 634/81 1878/77 1-1-74 to 30-6-74 15. 746/81 1871/77 1-7-74 to 31-12-74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court came to hold the view that the offence in question in each complaint case filed in the court was a continuing offence ; and as such, all complaints were within time, in no way attracting the bar under section 468(2)( a ) of the Code of Criminal Procedure, 1973. Accordingly, due cognizance of the offence was taken, and extract of the offence complained of was stated and explained to the accused persons with their pleas duly recorded. Being aggrieved with the same, the applicants-accused have filed the present petition and the connected ones. Respective learned counsel on both sides have cited certain rulings in support of their contentions, one contending for the clear applicability of section 468(2)( a ) of the Criminal Procedure Code, and the other, repelling the same and invoking instead section 472 ibid. The sole point for consideration is whether the failure of the receivers, while in possession of the property, to file the abstract, as required under section 421 of the Companies Act, once in every half year, is a continuing offence or, the offence for every particular half year is complete once and for all on their failure to file the abstract for the particular half ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the complaint nor proved in evidence, so as to at least attract clause ( b ) of section 469(1) of the Code of Criminal Procedure. The question of condonation of delay or extension of the period of limitation in accordance with section 473 of the Code of Criminal Procedure, is equally ruled out, in the absence of any prayer in this regard, backed by any circumstances for explaining the delay. Now, in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908, the distinction between a "completed offence" and a "continuing offence" is found to be stated thus (at page 909) : "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 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 or 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 omi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he particular stipulated date of the corresponding year is a complete default and not a continuing default. There are some other decisions also of other High Courts, the facts and circumstances whereof are quite akin to those as in the present case. In Mohil Kumar Mukerjee v. Registrar of Companies, West Bengal [1981] Cri LJ 134 (NOC), the Calcutta High Court, dealing with the offence under section 296(4) of the Companies Act, has held that an act of advance of loan to companies, without prior approval of the Central Government, was complete on the date the loan was advanced, and was not a continuing offence; and as such, the prosecution launched after the period of six months was held to be illegal. In State of Orissa v. Duriodhan Parita [1981] Crl LJ 1671, the Orissa High Court, dealing with the offence under section 14(2) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, has held that the failure to deposit the contribution of provident fund relating to the period from September, 1975, to November, 1975, was not a continuing offence and the offence was complete on the date of failure, necessitating the filing of the complaint within the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuing offence; and the offence regarding breach or non-compliance becomes complete as soon as the particular half-yearly period during which he is required to file the abstract comes to a close. Mandatory provision of section 468(2)( a ) of the Code of Criminal Procedure, 1973, therefore, holds the field and controls the period of limitation for taking cognizance of the offence under section 423 read with section 421 of the Companies Act. If the court, after the lapse of such period of limitation, takes cognizance, it would be acting without jurisdiction, as section 468 of the Code, which is mandatory and not directory, creates a bar to the taking of cognizance (see Shri Krishna Sanghi v. State of M. P. [1976] MPLJ 559. It is, thus, clear that only in Criminal Case No. 1869 of 1977, for the period from July 1, 1976, to December 31, 1976, cognizance of the offence under section 423 read with section 421 of the Companies Act, 1956, is found to be rightly taken by the trial court within six months of the commission of the offence, in accordance with section 468(2)( a ) of the Code of Criminal Procedure, 1973; and the trial court is found to have acted erroneously in taking cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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