TMI Blog2003 (8) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... is illegal and liable to be quashed. Submission is made that in view of Section 21 of the IPC, these officers being public servants, for their prosecution sanction under Section 197, Cr.P.C. was the basic requirement, which having not been complied with, the order of cognizance is bad and liable to be set aside. 4. The learned counsel has made a reference to Clause 12 of Section 21 of IPC to contend that every person in the service or pay of Government remunerated by fees or commission for performance of any public duty by the Government or in the service or pay by local authority, corporation established by or under a central provincial or State Act or a Government Company as defined under Section 617 of the Companies Act, 1956 comes under definition of a public servant and, therefore, these petitioners being officers of the Government Company i.e. M/s. NALCO, as defined under Section 617 of the Companies Act, they come under the ambit and purview of the public servant and hence the order of cognizance without sanction of the appropriate authority that is the Central Government is bad in law and the cognizance is liable to be quashed. In support of his contention, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (c) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a proclamation issued under Clause (1) or Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression State Government occurring therein, the expression Central Government were substituted. 6. In the case of K. Ch. Prasad v. Smt. J. Vanalatha Devi and Ors.; AIR 1987 Supreme Court 722, the Apex Court, while considering as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the Registrar of Companies gets knowledge of the affairs of the companies gets knowledge of the affairs of the companies and deviation or offences, if any, committed by it when the balance sheet is filed. The Registrar is deem to have knowledge of the contents of the balance sheet upon receipt thereof and thus complaint filed beyond one year of receipt of the balance sheet could not be entertained nor could the learned Magistrate take cognizance of the offence alleged. 8. Section 468 of the Code of Criminal Procedure reads thus : 468. Bar to taking cognizance after lapse of the period of limitation : (1) Except as otherwise provided elsewhere, in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be : (a) Six months, if the offence is punishable with fine only; (b) One year, if the offence is punishable with 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 purpose of this Section, the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 621 of the Companies Act, no Court is to take cognizance of an offence against a Company except on the complaint of a share holder, the Registrar or a person authorised by the Central Government. 10. In the case at hand, the prosecution was lodged by the Registrar of Companies under Section 211 of the Companies Act which is punishable with simple imprisonment for a period of six months or fine of Rs. 1,000/- or both and thus the period prescribed for limitation, the prosecution and taking cognizance thereof by a competent Magistrate would be one year. The admitted position is that the Company had filed the balance sheet in respect of the year, 1992-93 was filed on 19.10.1993, exception to which has been taken by the Registrar of Companies and necessary complaint have been, lodged before the learned Magistrate on 1.12.1994. If the date of Knowledge is the starting point of the period of limitation of one year as contemplated under Section 468(2) Cr.P.C. undisputedly the complaint has been lodged beyond a period of one year. However, according to the Registrar of Companies, the offence came to his knowledge on receipt of the letter of the Regional Director, Eastern Region, Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Schedule - 6 of the Companies Act and as such, the petitioner should give full justification thereof and to confirm as to why these deposits should not be treated as port-folio management transactions. It was also indicated that from the balance sheet as on 31.3.1990, the Company had invested a magnum to the extent of Rs. 92272 (in thousand) and Rs. 164450 (in thousand) and as to whether such investment should be treated as port-folio management scheme transactions and are covered under the main object of the memorandum of association of the Company. The Company gave its reply on 20.11.1993. Subsequent correspondences were also made. However, the inspecting Officer deputed by the Government of India came to know of the irregularity on 19.11.1993 for the first time. Even if the date of filing of the balance sheet is not to be taken as the date of knowledge of the Registrar of Companies, the anamolies, defects and violation having come to the knowledge of the inspecting Officer on 19.11.1993, that has to be construed as the date of knowledge and the period of limitation has to start from that date. If that is taken as the date of knowledge then, the prosecution is clearly b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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