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TMI Blog2013 (2) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners. Ext.P5 intimation to the petitioners by the Registrar of Companies directing them to explain the default by the petitioners has been proved in evidence. Ext.P7 reply dated 3.11.1994 did not contain the particulars called for by the Registrar. At least as on 3.11.1994 the petitioners had not refunded the application money. So up to 3.11.1994 at least the offence was a continuing offence. The complaint was filed on 22.4.1995 well within the six months' period from 3.11.1994. Perhaps from the date when actually the application money was refunded, it may not be a continuing offence. But until the refund of the application money, the offence is a continuing offence. As such, I do not find any merit in the contention of limitation raised by the petitioners against the prosecution. This is a prosecution where the facts are not in dispute at all. The facts clearly establish the guilt of the petitioners. The petitioners were statutorily bound to refund the application money by 15.4.1992. Even as on 3.11.1994, when the petitioners submitted Ext.P7 reply to Ext.P5 letter by the Registrar of Companies, the application money had not yet been refunded. As such, the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department of Company Affairs, New Delhi on 17.11.1993 stating that he had applied for 200 shares offered by the first accused along with a sum of Rs.1000/- towards application money in response to the prospectus issued by the first accused and that the first accused neither allotted the shares applied for nor returned the share application money. The department of Company Affairs, in turn forwarded the said complaint to the complainant with instructions to enquire into the allegations levelled against the accused and to ascertain as to whether the accused had contravened the provisions of Section 73(2A) of the Act. Thereupon the complainant issued a letter to the accused on 31.10.1994 requesting the accused to furnish their explanation in respect of the allegations made in the complaint and also to furnish the details of the refund orders already issued such as the date and number of refund order, particulars of the cheque, date of encashment of the refund order by the alleged applicant etc. The reply dated 3.11.1994 submitted by the second accused did not contain the particulars called for by the complainant. However, it was revealed from the reply of the second accused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited company incorporated under the Companies Act having its registered office at Ernakulam and is represented by its managing director second accused. The second is to be deemed as 'officer who is in default' within the meaning of Section 5 of the Act. In an Extra Ordinary General Body meeting of the first accused company held on 15.1.1991, a special resolution was passed under Section 81(1)(A)(a) of the Act authorising its board of directors for the issue and allotment of 41,13,000 equity shares of Rs. 10/- each at par as fully paid up ranking paripassu with the existing equity shares in all respect. The first accused company had subsequently filed a draft prospectus with the complainant, as required u/s 60 of the Act, for the public issue of 36,00,000 equity shares of Rs. 10/- each at par and the same was duly registered by the complainant. The prospectus was issued by the company on 18.12.1991 and the public issue of the equity shares in terms of the prospectus opened on 27.1.1992 and closed on 5.2.1992. As per the terms of the said public issue, every application for allotment of equity shares was to be for a minimum of 100 shares or in multiples thereof, and a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow in this Criminal Revision Petition. 4. Today, when the matter is taken up, the petitioners and the learned counsel for the petitioners are absent. Therefore, I am constrained to consider the matter on the basis of the records of the lower courts and the judgments of the courts below. 5. In the Criminal Revision Petition, the petitioners raise two grounds. The first is that Ext.P5 complaint was not properly proved by the author of the complaint by examining him. Instead, the same was proved through PW1, who is not competent to prove the same, insofar as the complaint was received by the Department of Company Affairs and PW1 had only a hearsay knowledge about the same. The second contention is that the prosecution is barred by limitation. The contention is that under Section 468 of the Cr.P.C., the period of limitation in filing the complaint of this nature is six months. According to the petitioners, the refund amount was due to the person, who filed Ext.P5 complaint on 15.4.1992. The complaint is filed only on 22.4.1995, well beyond the six months' period of limitation prescribed under Section 468 of the Cr.P.C. According to the petitioners, the finding of the courts b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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