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TMI Blog2009 (5) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... at the company, in question, in terms of section 60 of the Companies Act, 1956 filed the prospectus with the office of the complainant for raising money from the public/primary market and the said prospectus was registered by the office of the complainant. 6. That show-cause notice dated 21-5-2002 to the said contravention was thereafter issued to the Accused which is marked as Annexure-4 to the complaint and reply of the company to the said show-cause notice is marked as Annexure-5. 7. That the complainant most respectfully submits that the reply to the said show-cause notice was thereafter forwarded to the Authorities concerned and, accordingly, in the absence of any communication from the Department of Company Affairs, Shastri Bhawan, New Delhi, the complainant could not have filed the present complaint. The Department vide its letter dated 11-11-2003 directed the Regional Director (NR), Kanpur to advise the office of the complainant to file the present company who in turn by letter dated 20-11-2003 advised this office to file the present complaint. Copies of the aforesaid letters are marked as Annexures-6 & 7 respectively. The provision of section 468, Cr.P.C. are, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed after seven years of the filing of the prospectus is barred by limitation. 5. The petitioners have also relied upon a judgment delivered by this Court in Sunair Hotels Ltd. v. Registrar of Companies [2009] 92 SCL 11 wherein in a similar circumstance also a complaint was filed beyond period of limitation, this Court has held : "6. Section 374 of the Companies Act reads as under : 374. Penalty for contravention of section 372 or 373.-If default is made in complying with the provisions of [section 372 [excluding sub-sections (6) and (7)] or section 373], every officer of the company who is in default shall be punishable with fine which may extend to [fifty thousand] rupees. 7. Similarly, it will also be appropriate to take note of section 468 of Cr. P.C. 468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a )Six months, if the offence is punishable with fine only; (b )One year, if the offence is punishable with imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the facts spelt out by the respondent-complainant in the application made by him under section 473 of the Code for Condensation of delay. As pointed out by him, the cryptic order "and find prima facie grounds to proceed against the accused under section 473, Criminal Procedure Code ........", does not disclose whether the learned Additional Chief Metropolitan Magistrate condoned the delay and if so, on what ground. (6) Sub-section (1) of section 468 of the Code lays down that except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub-section (2) thereof after the expiry of the period of limitation prescribed in clauses (a), (b) & (c ) of the sub-section. Obviously the bar of limitation operates before the court takes cognizance of an offence. Under clause (a), sub-section (2) of section 468, the period of limitation is six months if the offence is punishable with fine only as is admittedly the position in the instant case. Section 469 of the Code prescribes the terminus a quo for the commencement of period of limitation. It is the date of the offence or where the commission of the offence was not know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the prosecution launched against him was clearly barred by limitation under sections 468 and 469 of the Code. The State went in appeal by special leave to the Supreme Court but the same was dismissed with the following observations which are very pertinent to notice : 'The object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.' (10) Obviously, an accused person acquires a valuable right the moment his prosecution is barred by limitation. Hence, that right cannot be taken away except in accordance with the provisions of law. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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