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TMI Blog2022 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... committed and it is a continuing offence until the default is complied with. The Companies Act, 1956, provides different kinds of punishments for various offences committed by the companies. For certain offences, took place once and for all, the Act provide only maximum punishment. For some kind of offences, for example, under Section 159, 160, 161 and 220 of the Act, relating to non filing of returns and some other documents before the Registrar of Companies, the punishment is provided under Section 162 of the Act - there is a clear distinction between the punishment. The penalty of payment of fine for every day till the default continues, indicates that, the offence continues until the default is complied with, which makes the offence a continuous offence. This court has no hesitation to hold that offence under Sections 159 and 220 of the Companies Act, 1956 are continuing offences and the bar created under Section 468 of Cr.P.C. will not get attracted as those offences are saved by the provisions of Section 472 of Cr.P.C. Petition dismissed. - CRIMINAL ORIGINAL PETITION NOS. 2836, 2837, 5468 TO 5471 OF 2015 AND M.P. NOS. 1 OF 2015 - - - Dated:- 11-1-2022 - V. BHARAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Directors of the accused company, are liable to be punished under Section 220 (3) of the Act for the failure to comply with the statutory provisions of Section 220 of the Act. (b) Crl.O.P. Nos. 2836, 5469 and 5471 of 2015:-The respondent-Deputy Registrar of Companies, Tamil Nadu, has filed three separate complaints under Section 159 r/w 162 of the Act alleging that annual returns of the company made upto 30.09.2010, 30.09.2011 and 30.09.2012 respectively were required to be filed with the respondent within sixty days from the date of annual general meeting in terms of Section 159 of the Act. However, the petitioners have not filed annual returns within the statutory period and thereby committed an offence punishable under Section 162 of the Act. (c) According to the respondent, the offence under Sections 159 and 220 of the Act, which are punishable under Section 162 of the Act, are continuing offences and the default commenced on 01.11.2010, 01.11.2011 and 01.11.2012 respectively in respect of offence alleged in Crl.O.P. Nos. 2837, 5468 and 5470 of 2015 and the default commenced on 01.12.2010, 01.12.2011 and 01.12.2012 respectively in respect of offence alleged in Crl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions, the learned counsel appearing for the petitioners would place reliance upon the judgments reported in CDJ 1972 SC 359: 1973 Crl.L.J. 347-State of Bihar v. Deokaran Nenshi; CDJ 1983 Cal HC 178-National Cotton Mills Ltd. v. Assistant Registrar of Companies); (1988) 3 Crimes 356-Indian Die C.C.P. Ltd. v. State (Case No. 1089 of 1983-Calcutta High Court-dated 13.05.1988); and 1990 (69) CompCas 442 Cal: 94 CWN 412-Luxmi Printing Works Ltd. v. Assistant Registrar of Companies dated 26.07.1989. 7. Per contra, the learned counsel appearing for the respondent would contend that, the petitioner admittedly failed to submit annual returns of the company and failed to submit the balance sheet and profit and loss account of the company as contemplated under the Act which are offences under Sections 159 and 220 of the Act and punishable under Section 162 of the Act, which provides for punishment of fine which may extend to five hundred rupees for every day during which the default continues. The petitioners did not comply with the provisions and failed to submit the annual returns and balance sheet and profit and loss account of the company till date of filing of the complaints. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (2013) 2 SCC 435, the Honourable Supreme Court has explained the expression continuing offence as under:- 25. In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath [(1991) 2 SCC 141: 1991 SCC (Cri.) 315] this Court dealt with the issue and held as under: (SCC pp. 145-46, para 7) 7. ... According to Black's Law Dictionary, [5th Edn. (Special Deluxe)], 'continuing' means 'enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences'. Continuing offence means 'type of crime which is committed over a span of time'. As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. 'A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse'. So also a 'continuous crime' means 'one consisting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of repeated occurrence'. That apart, used as an adjective it draws colour from the context too.... 28. In Sankar Dastidar v. Banjula Dastidar [(2006) 13 SCC 470: AIR 2007 SC 514] this Court observed as under: (SCC p. 472, para 8) 8. A suit for damages, in our opinion, stands on a different footing vis- -vis a [continuous] wrong in respect of enjoyment of one's right in a property. When a right of way is claimed whether public or private over a certain land over which the tortfeasor has no right of possession, the breaches would be continuing one. It is, however, indisputable that unless the wrong is a continuing one, period of limiation does not stop running. Once the period begins to run, it does not stop except where the provisions of Section 22 of the Limitation Act would apply. The Court further held: (Sankar Dastidar case [(2006) 13 SCC 470: AIR 2007 SC 514], SCC p. 472, para 9) 9. Articles 68, 69 and 91 of the Limitation Act govern suits in respect of movable property. For specific movable property lost or acquired by theft, or dishonest misappropriation or conversion; knowledge as regards possession of the party shall be the starting point of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every moment of the time during which the offence continues. The relevant provision in the Code read as under:- 472. Continuing offence. In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. 16. Our High Court has taken a consistent view that the offence under Sections 159 and 220 of the Companies Act are the continuing offences. In Kalaimagal Corporation Limited, in Re (1987) LW (Crl.) 501, after having distinguished a judgment of a Division Bench of the Calcutta High Court in National Cotton Mills v. Assistant Registrar of Companies (supra) has held that offences under Section 159 and 220 of the Companies Act are continuing offences and hence, the bar under Section 468 of Cr.P.C. would not apply as the offences are saved by Section 472 of Cr.P.C. 17. The above said judgment has been followed by this court in another matter reported in 1997(1) CTC 382 (Assistant Registrar of Companies, Tamil Nadu v. M/s. Premier Synthetics Private Limited) wherein, it has been held as under:- 6. In these cases under consideration, some of the complaints relate to violation of section 159 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited v. Deputy Registrar of Companies, Tamil Nadu (Crl.O.P. No. 16188 to 16191 of 2011 dated 01.08.2018), this Court following the above stated judgments has held that the offences are continuing offences and therefore, the period of limitation prescribed under the Code would not get attracted. 20. So far as the judgments of the Division Bench of the Calcutta High Court (cited supra) relied upon by the learned counsel for the petitioners to support him that the offences under Section 159 and 220 of the Companies Act, 1956 are not continuing offences, this court in Kalaimagal Corporation Limited (cited supra) already considered the above judgments and distinguished the same and held that those offences are continuing offences. I am inclined to subscribe the above view. 21. In the light of the consistent view taken by this court, this court has no hesitation to hold that offence under Sections 159 and 220 of the Companies Act, 1956 are continuing offences and the bar created under Section 468 of Cr.P.C. will not get attracted as those offences are saved by the provisions of Section 472 of Cr.P.C. 22. Insofar as the next contention of the learned counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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