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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 ..... fence under Section 220 r/w 220(3) of the Companies Act, 1956 pursuant to the complaint filed by the respondent against the petitioners for having contravened the provisions of Section 220 of the Companies Act, 1956, in not having filed the balance-sheet and the profit and loss account for the financial year ending 31.03.2010, 31.03.2011, 31.03.2012 respectively within sixty days of the close of the financial year. 2. Since the parties in all these original petitions are one and the same and the issues involved are identical, all the original petitions were heard together and being disposed of by way of this common order. 3. The facts leading to the filing of the present original petitions, in brief, are as follows:- (a) Crl.O.P. Nos. 2837, 5468 and 5470 of 2015:-The respondent-Deputy Registrar of Companies, Tamil Nadu, has filed three separate complaints under Section 220 r/w 220(3) of The Companies Act (in short, "the Act') alleging that balance sheet and profit and loss account of the accused company for the financial year ending 31.03.2010, 31.03.2011 and 31.03.2012 were required to be placed in the annual general meeting of the company within sixty days of the close of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 220 (3) of the Act concerning non filing of annual return and non placing of balance sheet and profit and loss account of the company are one time offences and they are not continuing offences. The learned counsel appearing for the petitioners would submit that the maximum punishment prescribed for the offence under Section 162 of the Act is payment of fine alone and therefore, as per Section 468 of Cr.P.C. the complaints ought to have been filed within a period of six months from the date of commission of alleged offence. In absence of any express provisions in the Act that the offenses under section 162 of the Act is a continuing offense, it cannot be treated as continuing offence where limitation could be waived under Section 472 of Cr.P.C. Paying penalty for every day till default is complied with will not make an offence as continuing one and therefore, the complaints are barred by limitation and the same are liable to be quashed. 5. The learned counsel appearing for the petitioners would further submit that even though in the complaints, it has been stated that show cause notice were issued to the petitioners, no proof have been filed to substantiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 1997 (1) CTC 383-Assistant Registrar of Companies v. Premier Synthetics Pvt. Ltd; 2003 (45) SCL 500 Mad-C.K. Ranganathan v. Registrar of Companies; MUV Technologies Limited v. Deputy Registrar of Companies, Tamil Nadu (Crl.O.P. No. 16188 to 16191 of 2011 dated 01.08.2018); and T.G. Krishnamurthy v. Assistant Registrar of Companies (Crl.O.P. No. 27692 to 27703 of 2005 dated 19.12.2008). 10. I have considered the rival submissions carefully. 11. The primordial question to be decided in these matters is, as to whether offences under Section 159 and 220 of the Companies Act, 1956 which are punishable under Section 162 and 220(3) of the Companies Act, 1956, are continuing offences are not? 12. The expression "continuing offence" has not been defined in the Code of Criminal Procedure, 1973. However, the courts have explained the same in number of judgments. In the case of continuing offence, the ingredients of offence continues even after the offence takes place, whereas in an instantaneous offence, the offence took place once and for all, in such case, there is no continuance of offence. For the offence arising out of a failure to comply with a statutory provision, which is inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." (See also Bhagirath Kanoria v. State of M.P. [ (1984) 4 SCC 222: 1984 SCC (Cri.) 590: 1985 SCC (L&S) 30: AIR 1984 SC 1688], SCC p. 227, para 10 and Amrit Lal Chum v. Devoprasad Dutta Roy [(1988) 2 SCC 269: 1988 SCC (Cri.) 339: AIR 1988 SC 733].) 27. In Raymond Ltd. v. M.P. Electricity Board [(2001) 1 SCC 534: AIR 2001 SC 238] this Court held as under: (SCC p. 549, para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even though the damage resulting from the injury may itself continue." 14. 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, which reads as follows:- "162. (1) If a company fails to comply with any of the provisions contained in section 159, 160 or 161, 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. (2) For the purpose of this section and sections 159, 160 and 161, the expression "officer" and "director" shall include any person in accordance with whose directions or instructions the Board of directors of the company is accustomed to act." There is a clear distinction between the punishment. The penalty of payment of fine for every day till the default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts to decide that question. The question whether the offences referred to above are continuing offences or not is the subject-matter of three decisions and they are as follows: Kalaimagal Corporation Ltd., In re [1987] LW Crl. 501; Dhanalakshmi Chemical Industries Pvt. Ltd., In re [1988] LW Crl. M.P. Nos. 7417 of 7419 of 1986. 7. The first two judgments have been rendered by Justice Mrs. Padmini Jesudurai J. and the last one was rendered by Justice Mr. T.S. Arunachalam J. (as he then was). Uniformly all the judgments hold that the offences complained of in these complaints are continuing offences and, therefore, the period of limitation prescribed in law is not attracted. In view of the settled position of law, I have no hesitation in setting aside the orders impugned in each of the revision cases and remand the matter back to the trial court for further action in accordance with law." 18. In T.G. Krishnamurthy v. Assistant Registrar of Companies (Crl.O.P. No. 27692 to 27703 of 2005 dated 19.12.2008) following the judgments of this court cited supra, a learned single Judge of this Court has held as under:- "17. In view of the said categorical pronouncement coupled with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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