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2013 (2) TMI 255 - KERALA HIGH COURTNon allotment of shares applied nor returned the share application money - contention of limitation raised by the petitioners against the prosecution - whether it was a continuing offence? - Held that:- The ROC is the person competent to initiate prosecution under the provisions of the Companies Act. If a violation of the provision of Act has been brought to his notice, he is certainly competent to initiate a prosecution on the basis of the information received. Ext.P5 is only in the nature of an information regarding commission of an offence under Sections 73(2A) and 73 (2B) of the Companies Act. On the basis of that information, the Registrar of Companies is certainly entitled to initiate prosecution by filing a complaint. Such initiation of prosecution cannot be faulted simply because the informant has not been examined as a witness. It is all the more so, since the facts stated in Ext.P5 cannot be disputed by the petitioners at all in this case. The fact that the petitioners should have refunded the application money by 15.4.1992 cannot be disputed by the petitioners. Ext.P5 intimation to the petitioners by the Registrar of Companies directing them to explain the default by the petitioners has been proved in evidence. Ext.P7 reply dated 3.11.1994 did not contain the particulars called for by the Registrar. At least as on 3.11.1994 the petitioners had not refunded the application money. So up to 3.11.1994 at least the offence was a continuing offence. The complaint was filed on 22.4.1995 well within the six months' period from 3.11.1994. Perhaps from the date when actually the application money was refunded, it may not be a continuing offence. But until the refund of the application money, the offence is a continuing offence. As such, I do not find any merit in the contention of limitation raised by the petitioners against the prosecution. This is a prosecution where the facts are not in dispute at all. The facts clearly establish the guilt of the petitioners. The petitioners were statutorily bound to refund the application money by 15.4.1992. Even as on 3.11.1994, when the petitioners submitted Ext.P7 reply to Ext.P5 letter by the Registrar of Companies, the application money had not yet been refunded. As such, the prosecution has proved the guilt of the petitioners beyond a reasonable doubt. In the above circumstances no merit in the contentions of the petitioners in this Criminal Revision Petition and accordingly, the same is dismissed.
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