TMI Blog1983 (8) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... f its officers obtained the present rules for quashing the prosecutions pending against them in different Courts of the Metropolitan Magistrate, Calcutta. The cases have been heard together and this order shall govern all of them. Mr. Chakraborti, appearing on behalf of the petitioners in all these cases, contends that the learned Magistrates erred in law in taking cognizance of the cases without examining the complainant or his witnesses, that the company had been previously given exemption from filing returns due to circumstances beyond their control on account of the Indo-Pak War, that the company is also entitled to exemption for subsequent periods as well, that the company is also entitled to relief under section 633 of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, in short, is that all the proceedings are barred by limitation. In order to appreciate the point it may be useful to refer to the provisions of section 159 and section 162 of the Companies Act. Section 159 requires every company to file with the Registrar the particulars specified in the section in the form of a return within 60 days from the date on which the annual general meeting is held. The penal provision for failure to comply with the aforesaid provisions is contained in section 162, which reads as follows : "Section 162 Penalty and interpretation. (1) If a company fails to comply with any of the provisions contained in sections 159, 160 or 161, the company, and every officer of the company who is in default, shall be punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The argument is founded upon the wording of section 162 of the Companies Act which provides that the defaulting company and every officer thereof shall be punishable with fine for every day during which the default continues. Considerable emphasis was laid on the use of the expression "during which the default continues". It is contended by Mr. Sengupta that the offence continues from day to day and is, therefore, a continuing one. Mr. Chakraborti, on the other hand, argues that the offence is complete as soon as the default in submitting the return is made. The provision for payment of fine on daily basis after the default, according to Mr. Chakraborti, is only to ensure speedy submission of return on pain of penalty for each day the defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the offence is alleged to have been committed. The Explanation to the section provides that if an offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. In that case, the complaint was filed more than six months after the default. The question that fell for consideration was whether the offence was a continuing one or not so that the Explanation to section 79 might be invoked. It was observed that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It was held that the offence was complete on the owner failing to furnish the ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act which provides for continuance of the offence in case the offender persists in disobeying the requirement. It cannot be disputed even on the authority of this decision that the offence is complete once the default is made. The absence of any specific provision as in section 58B (2) of the Reserve Bank of India Act distinguishes that case from the cases before us. The next case cited, Krishna Kumar v. State [1981] 2 CHN 301 (Cal.), is a case under the Employees' Provident Funds and Family Pension Fund Act and follows the decision in Wire Machinery v. State [1978] CHN 293 (Cal.). Finally, Mr. Sengupta referred to a Single Bench decision of this court in the case of Apt Kumar Sarkar v. Assistant Registrar of Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such returns becomes a continuing offence. When section 162 of the Companies Act prescribed the penalty of fine which may extend to fifty rupees for every day during which the default continues, it merely prescribed the measure of penalty such a prescription being made with the object of enforcing strict compliance with the requirement of section 159 under the threat of enhanced penalty and getting relief from such penalty on enhancing scale by early submission of return even after the default. That does not render the initial default a continuing one. It cannot be said that the offence is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
