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TMI Blog2018 (10) TMI 1954X X X X Extracts X X X X X X X X Extracts X X X X ..... 162 of the Companies Act for default in filing the annual returns and Profit Loss Account that within a stipulated time that does not render the initial default a continuing one. The offence cannot be said to be repeated or committed from day to day after the initial default. It is only where the offence is committed from day to day or repeated from day to day, then in that event only it can be called a continuing offence. The language of section 162 does not warrant any continuity as they are in sections 234, 294, 372 and 598 of the Companies Act. The offence on the breach there of is complete with the failure to furnish the return in the manner or within the time stipulated such an offence is committed once and for all as and when one commits the default the same analogy could be drawn with regard to Section 220 of the Companies Act for failure of filing Profit and Loss Account. Further it is held that the above provisions does not contemplate that the obligation to submit such returns continues from day to day until the return is actually submitted nor does it provides that continuance of business without filing of such returns is prohibited so that non fulfillment of a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Accused and the respondent is referred as Complainant as found in the complaint. 6. The complaint is that the 1st accused company was incorporated on 18.01.2000 under the Companies Act, 1956 represented by the 2nd accused, who is the Managing Director. The Annual General Meeting of the company for the financial year 31.03.2006 should have been held by 30.09.2006 and the annual returns to be filed within 60 days i.e,. on or before 29.11.2006 and in this case the accused had not conducted any annual general meeting and failed to file the returns on the due date and thereby committed an offence under Section 159 of the Act, which is punishable under Section 162 of the Act. Likewise, for the financial year ending 31.03.2007, Annual General body meeting was not conducted and the returns were not filed with the complainant. Crl.O.P.No.16188 of 2011 and Crl.O.P.No.16190 of 2011 are filed against cases for violation of Companies Act under Section 159 for the financial year 2006-2007. 7. Crl.O.P.No.16189 of 2011 and Crl.O.P.No.16191 of 2011 are filed against cases for violation of Section 220 of the Companies Act, since the accused failed to perform the statutory obligations fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. [(3) For the purposes of this section, the period of limitation , in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the the case may be, the most severe punishment.] 13. These two sections fall under chapter XXXVI of the Code of Criminal Procedure with the heading Limitation for taking cognizance of certain offences. As per section 468 of the Code of Criminal Procedure Code, which is a non absentee clause wherein it has categorically held that no court shall take cognizance of an offence after the expiry of the period of limitation. The period of limitation shall be 6 months if the offence is punishable with fine only. In this case, the cause of action as per the complainant as could be found in the complaint would commence after issuance of show cause notice dated 30.07.2008. The complaint in all the four cases have been filed only during June 2011, which is well after three years from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed three years after the show cause notice i.e, during June 2011. 17. Relying upon the decision of this Apex Court the Calcutta High Court had categorically held that 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 . Further, it had held that as per section 159 of the Companies of the Act failure to obey or comply with the rule or its requirement involves a penalty, which continues until the rule or its requirement is obeyed or complied with. Further held that section 159 of the Companies Act does not impose any liability which so continues. The offence on the breach there of is complete with the failure to furnish the return in the manner or within the time stipulated such an offence is committed once and for all as and when one commits the default the same analogy could be drawn with regard to Section 220 of the Companies Act for failure of filing Profit and Loss Account. Further it is held that the above provisions does not contemplate that the obligation to submit such returns continues from day to day until th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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