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TMI Blog2011 (12) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence punishable under Section 162(1) of the Companies Act on account of default of submission of annual return in pursuance of Section 159 of the Companies Act for the period 31.3.1992 to 31.3.2006. The aforesaid complaint was filed on 4th of July 2007 over which the learned Presiding Officer had taken cognizance on 6.7.2007. 3. It has been contended on behalf of the petitioner that the prosecution of the petitioners are false and malicious and cannot be permitted to proceed as it suffers from factual as well as legal deficiencies. For that submitted that it happens to be hit by Section 468 of the Cr.P.C., whereunder period of limitation has been prescribed for taking of cognizance of an offence. Because of the fact that it happens to be an offence which prescribes only fine as a result of which the cognizance should have been taken within six months from the date of alleged offence and so submitted that order of cognizance happens to be barred by law of limitation. Then submitted that because of the fact that prosecution is also bad for want of encircling the petitioners to be at default as they have not been entrusted to discharge his function including furnishing of annua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with law as prescribed under Companies Act whereunder at Sub-clause (b) the whole time director or whole time directors do find place. Sub-clause (g) contains a scope whereunder in absence of officers falling under category (a) to (c), any director or directors who have been entrusted by the Board and where no director is so specified, all the directors are to be held responsible. In the present case, as is evident for want of necessary pleading on this score by the rival party, Clause (g) appears to be applicable and that happens to be reason behind that all the Directors including the Company has been made an accused. The prosecution under section 162 is to be attracted only in case, there happens to be default on the part of Company to perform and discharge its obligation which it shares in accordance with Sections 159, 160 and 161 of the Companies Act. Section 159 speaks like so: "159. Annual return to be made by company having a share capital. (1) Every company having a share capital shall within sixty days from the day on which each of the annual general meetings referred to in section 166 is held, prepare and file with the Registrar a return containing the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following particulars as they stood on that day: (a) the address of the registered office of the company; (aa) the names of members and the respective dates on which they became members and the names of persons who ceased to be members since the date of the annual general meeting of the immediately preceding year, and the dates on which they so ceased; (b) all such particulars with respect to the persons who, at the date of the return, where the directors of the company its manager and its secretary as are set out in section 303. (2) There shall be annexed to the return a statement containing particulars of the total amount of the indebtedness of the company as on the day aforesaid in respect of all charges which are or were required to be registered with the Registrar under this Act or under any previous companies law, or which would have been required to be registered under this Act if they had been created after the commencement of this Act. 161. Further provisions regarding annual return and certificate to be annexed thereto. (1) The copy of the annual return filed with the Registrar under section 159 or 160, as the case may be, shall be signed both by a direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her that the Registrar may, for any special reason, extend the time within which any annual general meeting (not being the first annual general meeting) shall be held, by a period not exceeding three months. (2) Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situate. Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose: Provided further that (a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings; and (b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution agreed to by all the members thereof, fix the times as well as at the place for its annual general meeting." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses that a person charged with an offence could not rely on his own default as an answer to the charge and so, if the person charged was responsible for not calling the general meeting, he cannot be heard to say in defence to the charge that the general meeting had not been called. It was also said that the company and its officers were bound to perform the condition precedent if they could do that, in order that they might perform their duty. This seems to us to be the correct view to take. If the person charged with the failure to carry out the requirements of the section could have called the meeting, he cannot defeat the provisions of the section simply by not calling the meeting willfully. 8. Nor do we think that sub-sec.(5) of S. 32 by imposing a daily fine during the continuance of the default indicates that the default is not committed till the meeting has been held. In order that the default may continue it has no doubt first to occur. In our view, it occurs after the expiry of 21 days from the day when the meeting should have been held within the year." 13. Nature of offence to be continuing one has also been considered by bench of this Court, as reported in 2004(2) E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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