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TMI Blog2000 (3) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 by the Delhi Stock Exchange for dealing in the said debentures on 27-1-1992 and hence, under section 73(2A), the liability to repay the monies received from the applicants in excess of the aggregate of the application monies relating to the debentures in respect of which allotments had been made arose on 27-1-1992 and the said excess monies were to be repaid to the applicants within eight days thereof. According to the petitioner all the shares/debenture certificates, refund warrants, brokerage and underwriting commission cheques had been mailed on 27-1-1992 itself whereas the statutory date by which the refund orders were to be sent under section 73(2A) was 4-2-1992. However, on 17-12-1992, a notice under section 73 was received by the petitioners to show cause as to why action as contemplated under section 73(2B) should not be taken against them for committing default under section 73(2A), for not refunding the excess application monies within the stipulated time. It is averred that the petitioners replied to the show-cause notice, denying the allegations. In October 1993, the petitioners received yet another show-cause notice, dated 30-9-1993, on similar lines, which is sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted and, as such the learned Magistrate was justified in entertaining the complaint and taking cognizance of the offence. In support, reliance is placed on a few judicial pronouncements dealing with : section 113 of the Act -(failure to issue certificates); sections 162(1) and 220(3) - (failure to submit balance sheet etc., within time); section 454 - (non-filing of statement of affairs in time) and sections 159 and 162 - (failure to file the annual return), holding that breach of any of these provisions was a continuing offence and, on this analogy, it was contended that the period of limitation provided by section 468 of the Code did not have any application in the instant case as well and the offence under section 73(2B) of the Act will be governed by section 472 of the Code. However, no direct pronouncement on the issue has been cited. 7. Since it is well settled that this Court, in exercise of its jurisdiction under section 482, cannot make inquiries into the disputed questions of fact and record its own findings thereon, it is neither possible nor do I propose to express any opinion with reference to the alternative plea of the learned counsel for the petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law, he continues to be guilty of the infraction and exposes himself to the penalty provided by law." (p. 341) It was thus held that if a duty continues from day to day, the non-performance of that duty from day to day was a continuing wrong and the concept of continuing offence does not wipe out the original default and it keeps the contravention alive day by day till the breach continues. It is significant to note that though in the case of Maya Rani Punj (supra) one of the factors taken into consideration for holding the default of non-filing of return as a continuing offence was the prescription of rate of penalty on monthly basis but section 14(2A) of the Employees Provident Fund and Family Pension Fund Act does not prescribe for payment of fine for every day or every month for which the default in paying the employer s contribution to the fund continues. Yet the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny who is in default shall be punishable with fine which may extend to five thousand rupees, and where repayment is not made within six months from the expiry of the eighth day, also with imprisonment for a term which may extend to one year." Sub-section (2A) was inserted to cover cases where permission of the stock exchange has been obtained, but the shares or debentures have been over-subscribed and the company is consequently in possession of excess amounts. The sub-section makes the company and its directors liable to repay the excess amounts forthwith. If the excess amount is not repaid within eight days from the date the company becomes liable to pay it, the company and the directors are made jointly and severally liable to repay such amount with interest at such rate, as may be prescribed, which may vary between 4 per cent to 15 per cent, having regard to the length of the period of delay in making repayment of such money. Vide rule 4D of the Companies (Central Government) General Rules and Forms, 1956, the rate of interest has been prescribed at 15 per cent per annum. Sub-section (2B) provides for punishment for default in not complying with the requirement of sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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