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TMI Blog1987 (7) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... count as required under Section 220 of the Act, as amended by the Companies Amendment Act 1977 (hereinafter referred to as the Act) and had failed to submit before the Registrar the annual return as required under 8.159 of the Act, which offences are punishable under S. 162 of the Act. C.C. No. 436 of 1982 related to the offence under S.220 read with S. 162 of the Act and C.C.Nos.437 to 440 of 1982 related to the offence under S. 159 read with S.162 of the Act, for four consecutive accounting years. 3. During trial, on behalf of the prosecution, the Assistant Registrar of Companies, Madras, was examined as P.W. 1 and Exts. PI to P23 were marked. When questioned under S.313, Crl.P.C., the petitioners contended that they had sent a letter to the Assistant Registrar of Companies under the original of Ex. D2 requiring him to strike off the name of the company from the Register and a paper publication to the above effect had also been made under Ex. D1, that since the company had become defunct they were not required to sent either the returns under S.159 of the Act or the balance sheet under S.220 of the Act and that, therefore they were not liable. On behalf of the petitioners, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence was committed and mens rea as an additional ingredient to the offence was not required to be proved. 7. The questions that arise for consideration are: (1) Whether the offences under Ss.159 and 220 made punishable under S.162 of the Act are continuing offences? (2) Whether the liability to furnish returns under S.159 of the Act and furnish audited balance sheet under S.220 of the Act would continue even if the company had become defunct? (3) Whether violation of Ss. 159 and 220 of the Act require mens rea? 8. Taking the first of the questions for consideration we find that continuing offence as such has not been defined either in the Code or in any other Statute. However, judicial pronouncements of the Supreme Court and the other High Courts under different statutes give us certain guidelines. The Supreme Court in State of Bihar v. Deokaran 1973 Cri. L.J. 347 (S.C), while holding that the offence created under S.66 of the Mites Act, 1932, in failing to furnish returns and notices within the prescribed time is not a continuing offence, observed as follows:-- Continuing offence is one which is susceptible of continuance and is distinguishable from the one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine which may extend to fifty rupees for every day during which the default continues. In this category is included offences falling under Ss. 159, 160, 161, 220 and 142(1) and other offences. In the last category, under Ss.168 and 234 of the Act and other sections, we find: ...shall be punishable with fine which may extend to rupees...and in the case of a continuing default with a further fine which may extend to rupees...for every day after the first during which such default continues. In this category are included offences under Ss. 166, 167, 234 and other offences. It is, therefore, clear that the Legislature intended certain offences under the Act which were committed once and for all, to be non-continuing offence, while certain other offences, either because of their gravity or because the default continued, were to be treated as a continuing offence, continuing so long as the default continued. Categories 2 and 3, therefore, inspite of the difference in the language, would fall within the category of continuing offences. Offences which fall under Ss.159, 160. 161 and 220 made punishable under S 162 of the Act relate to failure to file certain documents before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in other High Courts. The Orissa High Court in Registrar of Companies, Orissa v. Utkal Distributors (Pvt.) Ltd. and others 1977 Tax L.R. (NOC) 45 page 28, has held that, when the legislative policy provides for imposition of recurring fine under S 162 of the Act for violation of S.159, it was intended that the statutory provision should be followed and the breach should not be permitted to continue. The default continued so long as the returns were not filed. The offence was held to be a continuing one. 13. A single Judge of the Kerala High Court in Sudarsan Chits (India) Ltd. and others v. Registrar of Companies, Kerala (1986) 59 Comp. Cases 261 after, referring to certain other decisions on the subject, held that failure to file the Balance Sheet and Profit and Loss account under Ss. 159 and 220 of the Act is a continuing offence under S. 162 of the Act, notwithstanding the fact that a time limit has been prescribed for filing the same. The court held that S. 611(2) of the Act enabling filing of documents with the Registrar, after the prescribed time on payment of additional fees, also indicated that the offence should be construed as a continuing one. 14. Though the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence, therefore, continued and the bar under S.465, Crl.P.C., would not apply. The complaints were within time by virtue of S.472, Crl. P.C. 17. Regarding the next submission of the Learned Counsel for the petitioner that the company had become defunct and that, therefore, there was no liability on its part to submit the returns and the annual balance sheet, reference may be made to the decision in Madan Gopal v. State 1568 Cal. 79, wherein it was held that the fact that the company did not function would not exonerate the company from filing the returns or from filing atleast a nil balance sheet, though it might be an extenuating circumstance to some extent. Similar view had been taken by the Delhi High Court in Sukhbir Saran v. Registrar of Companies 1973 Tax L.R. 2196. Learned Judge held that the fact that the Company itself did not function could not be a ground by itself for the Registrar not to enforce submission of the returns and documents as prescribed by the Act. It is significant that under S.220(1) of the Act, even if no annual general meeting of the company is held, the balance sheet has to be filed with the Registrar within thirty days from the latest day on or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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