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TMI Blog2001 (12) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the balance of Rs. 1,44,71,901.99 was shown as other expenses. The respondent alleged in the complaint that the profit and loss account for the year ending 31st March, 1997 has not disclosed the other income of Rs. 4,46,806.24 and the profit on sale of trade mark amounting to Rs. 1,00,000 and the miscellaneous expense of Rs. 59,790.74 separately. 2.1 According to the petitioner, the contention of the respondent in the complaint stating that the default commenced on 1st April, 1997 and is a continuing offence within the meaning of section 472 of the Code of Criminal Procedure, 1973 ( Cr. PC ) is not correct. The offence complained of under section 211(7) of the Act is punishable with imprisonment for a term which may extend to six months or with fine or with both. The limitation for filing the complaint lapses on the expiry of one year. The present complaint was not filed within the time prescribed and hence it is barred by limitation. The learned Magistrate ought not to have taken cognisance of the offence. Hence, proceeding with the present complaint is an abuse of the process of court and the complaint is liable to be quashed. The petitioner has not concealed any materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to company with copy to the accused managing directors and company vide this office letter dated 9th February, 1999." 5. The offence under section 211(7) of Act is punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 10,000 or with both and as such, under section 468(2)( b ) of the Cr. PC, the period of limitation is one year. The relevant part of section 469(1) of the Cr. PC relating to the commencement of the period of limitation is as follows: "4. Commencement of the period of limitation. (1) The period of limitation, in relation to an offender, shall commence, ( a )on the date of the offence; or ( b )where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or ( c )where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier." According to the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed once and for all as and when one commits the default and the section does not lay down that the person concerned would be guilty of an offence if he continues to carry on without compliance or that the offence continues until the requirement is complied with. In this connection, he pointed out the offences mentioned in sections 113, 162 and 168 of the Act which were made to be continuing offences therein and contended that an act or omission should not be held as a continuing wrong or default, unless there are words in the statute which make out that such was the intention of the Legislature and he relies on two decisions of the Apex Court in this regard. 8.1 In State of Bihar v. Deokaran Nenshi AIR 1973 SC 908, the Apex Court has laid down as follows : "5. 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 a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the Legislature. ****** 17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that Act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be Illustrations of continuing breache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d within six months from the date of receipt of exhibit P-1, namely, 9th June, 1981, the complaint for the offence relating to the year 1981 within six months from the date of receipt of exhibit P-2, namely, 12th May, 1982, and the complaint relating to the year 1982 within six months from the date of receipt of exhibit P-3, that is, 30th May, 1983. The present complaint is filed only on 2nd February, 1985, which is far beyond the period of limitation...." (p. 693) In the present case, the petitioner filed profit and loss account for the year ending 31st March, 1997 in the office of the respondent. The respondent by letter, dated 21st December, 1998, required the petitioner to furnish break-up for other expenses mentioned in schedule J and the petitioner furnished the same by letter dated 28th December, 1998. In his letter, dated 9th February, 1999, the respondent called upon the petitioner to show cause as to why prosecution under section 211(7) of the Act for contravention of section 211(2) read with Schedule VI of the Act shall not be initiated against the directors of the company. 11. The learned Additional Central Government Standing Counsel appearing for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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