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TMI Blog2009 (3) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... d September 25, 2001, taking cognisance against the petitioners is hopelessly barred by limitation. In the present case, complaints have been lodged for infraction of sections 159, 162 and 220 of the Companies Act, 1956. Whereas section 159 mandates filing of annual return within 60 days from the day on which annual general body meeting was held, section 162 stipulates penalty for non-compliance of the requirement of section 159 with fine which may extend to fifty rupees for everyday during which the default continues. Section 220 requires filing of balance-sheet as well as profit and loss account within thirty days from the date on which the balance-sheet and the profit and loss account were laid before the annual general body meeting and in default, prescribed for a penalty as contemplated under section 162 of the Companies Act, i.e., fine at the rate of Rs.50 per each day of default. It is further submitted that since the offences complained of contemplated levy of fine only, under section 468(2) of the Code of Criminal Procedure, 1973, the period of limitation/bar to take cognisance stipulates that after lapse of the period of limitation stipulated therein is six months since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed Date of cognisance 1989-90 30-10-90 (under section 220) 30-11-90 (under section 159/162) 31-03-91 25-09-2001 25-09-2001 1990-91 30-10-91 (under section 220) 30-11-91 (under section 159/162) 31-3-92 25-09-2001 25-09-2001 1991-92 30-10-92 (under section 220) 30-11-90 (under section 159/162) 31-03-93 25-09-2001 25-09-2001 1992-93 30-10-93 (under section 220) 30-11-93 (under section 159/162) 31-03-94 25-09-2001 25-09-2001 1993-94 30-10-94 (under section 220) 30-11-94 (under section 159/162) 31-03-95 25-09-2001 25-09-2001 1994-95 30-10-95 (under section 220) 30-11-95 (under section 159/162) 31-03-96 25-09-2001 25-09-2001 1995-96 30-10-96 (under section 220) 30-11-96 (under section 159/162) 31-03-97 25-09-2001 25-09-2001 1996-97 30-10-97 (under section 220) 30-11-97 (under section 159/162) 31-03-98 25-09-2001 25-09-2001 1997-98 30-10-98 (under section 220) 30-11-98 (under section 159/162) 31-03-99 25-09-2001 25-09-2001 1998-99 30-10-99 (under section 220) 30-11-99 (under section 159/162) 30-04-2000 30-05-2000 25-09-2001 25-09-2001 6. In this respect, it is further contended that petitioner No. 2 company was regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the prescribed form." 7. Mr. Mahanty, learned counsel appearing for the petitioners submitted that the annual returns and balance-sheet filed for three financial years, i.e., 1986-87, 1987-88 and 1988-89 it would be clearly noticed that the company could not proceed with the construction of the project and there was no activities carried out by the company, therefore, it was unanimously decided to dissolve the company and request was made to the Registrar of Companies, Orissa to strike out the name from the register and declare it as a defunct company. It is further submitted that an application was filed by petitioner No. 2 company on December 30, 2003, for striking out the name of the company under section 560 of the Companies Act under simplified exit scheme and in terms of the said application the name of the company has, in fact, been struck off from the Registrar of Companies and the evidence of the same has been enclosed as enclosure D to the memorandum filed by the petitioners on March 16, 2009. Accordingly, Mr. Mahanty submitted that no real purpose would be served in continuing with the prosecution of petitioner No. 1 since the company no longer subsists and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 1990 to 1999, necessary prosecution under section 159/162(1) and section 220(3) of the Companies Act have been launched in the court of the learned A.C.J.M. (Spl.) Cuttack on September 25, 2001. He further submitted that in terms of section 5 of the Companies Act, 1956, the expression "officer-in-default" is defined to mean "officers of the company" and placing reliance on section 5(g) he claims to be applicable to the present case, since only the names of the directors had been indicated, and further since, the company had not filed Form 32. The Board's Resolution for appointing the managing director as provided under section 192(1) of the Companies Act and clause (c) of sub-section (4) of section 192 which provides, inter alia, "any resolution of the board of directors of a company or agreement executed by a company, relating to the appointment, re-appointment or renewal of the appointment, or variation of the terms of the appointment, of a managing director", is required to be filed in Form 32. Mr. Parhi further contended that the offences alleged against the officers of the company are "continuing offences" under section 472 of the Code of Criminal Procedure, and the bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, as to whether an offence under the Companies Act of the nature alleged in the present case is a "continuous offence" or not ? 14. In the case of Deokaran Nenshi (supra), the hon'ble Supreme Court held that a "continuous offence" is one which is susceptible of continuous and is distinguishable from the one which is committed once and for all. In the said case the hon'ble Supreme Court was dealing with an offence under the Mines Act, 1952. Section 66 of the Mines Act, 1952, provides that any person omitting, inter alia, to furnish any return notice, etc., in the prescribed form or manner or act or within the prescribed time required by or under the Act to be made or furnished shall be punishable with fine which may extend to Rs. 1,000. Section 79 however, lays down that no court shall take cognisance of any offence under this Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. In the facts of the said case, the respondent, who was the owner of the stone quarry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which it is filed. But the default, if any, is committed on the last date allowed to file the return and such default cannot be held to be committed every month thereafter. No doubt under the Companies Act, penalty of Rs. 50 has to be imposed for everyday during which the default continues. But similar to the Wealth-tax Act, the penalty that is leviable under the said stipulation is merely a "multiplier" to be adopted in determining the quantum of penalty and does not have the effect of making the default in question a continuing one. 16. Their Lordships of the Supreme Court came to hold that the distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. 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. 17. In the light of the aforesaid discussions, I have no hesitation to hold that the offence alleged in the complaint against the petitioner is not a "continuous wrong" and therefore, the bar to take cognisance as contemplated under section 468(2)(b) of the Code of Criminal Procedure applies to the complaint lod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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