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TMI Blog1988 (1) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... 00, Criminal Procedure Code, before the above court against the respondents, for an offence under section 113(2) read with section 621 of the Act, on the allegation that he is the holder of 466 equity shares, 236 preference share and 2069 redeemable preference share that share certificates for the above shares have not been issued to him even though the ordinary and preference shares had been transferred to him even though the ordinary and preference shares had been transferred to him even on December 2, 1963, and the redeemable shares were allotted to him on December 13, 1963. Despite several letters requesting the respondents to issue certificates, the respondents, while admitting the fact that the petitioner was the owner of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is whether the offence under section 113 of the Act is a continuing offence. 6 . The term continuing offence has not been defined either in the Criminal Procedure Code or in any other statute. However, judicial pronouncements of the Supreme Court and other High Courts under different statutes give us certain guidelines. The Supreme Court in State of Bihar v. Deokaran Nenshi 1973CriLJ347 , while holding that the offence mentioned under section 66 of the Mines Act, 1932, in failing to furnish returns and notice within the prescribed time, is not a continuing offence, observed as follows (at page 909 of AIR): A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961, was a continuing offence, laid down the acid test to determine the above issue (at page 341) : If a duty continues from day-to-day, the non-performance of that duty from day to day is a continuing wrong. We are of the view that the legislative scheme under section 27(1)(a) of the 1961 Act, in making provision for a penalty coterminous with the default to be raised, provides for a situation of continuing wrong. 10. It, therefore, follows that if the penalty is made coterminous with the default, then the offence is a continuing offence. 11. The Companies Act has been enacted in the interest of the general public who would be contributing shares to the floating of a company and would, therefore, be entitled to receive certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under the Act which were committed once and for all, to be non-continuing offences, while certain other offences, because the default continued were to be treated as a continuing offence, continuing so long as the default continued. Categories 2 and 3 therefore, in spite of the difference in the language, would fall within the category of continuing offences. Offences under sections 159, 160, 161 and 220, made punishable under section 162 of the Act, relate to failure to file certain documents before the Registrar of Companies. Filing of the above documents before the Registrar is required in the interest of the welfare of the shareholders. While furnishing a false statement to the Registrar, either in the annual returns or in the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1),the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues. 15. The object of requiring share certificates to be issued is relevant. The share certificate is a declaration by the company that the person in whose name the certificate is issued is a shareholder in the company and the object of issuing the certificate is to enable the person to use it as proof of the ownership of the shares and also to enable others to act upon that certificate either for sale or transfer of shares. The share certificate is the only documentary evidence of title in the possession of the shareholder. It is with this ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verruled a decision of the single judge of the same court in Ajit Kumar Sarkar v. Asst Registrar of Companies [1979] 49 Comp Cas 909 and held that the offences punishable under section 162 of the Companies Act are not continuing offences. It is, however, significant that in Maya Rani Punj v. CIT [1986]157ITR330(SC) , the Supreme Court has referred with approval to the decision of the single judge of the Calcutta High Court in Ajit Kumar Sarkar Kalaimagal Corporation Limited v. Assistant Registrar of Companies, (Order in Crl. R. C. Nos. 390 to 394 of 1984, dated July 28,1987). I have disagreed with the view of the Division Bench of the Calcutta High Court in National Cotton Mills v. Asst. Registrar of Companies [1984] 56 Comp. Cas 222 accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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