TMI Blog1991 (2) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed to have been complete, has, therefore, to be rejected. - CRIMINAL APPEAL NOS. 97, 98, 99, 100 AND 101 OF 1991 - - - Dated:- 14-2-1991 - K.N. SAIKIA AND MADAN MOHAN PUNCHHI, JJ. A.S. Bobde, Vinod Bobde and S. Sukumaran for the Appellant. G. Ramaswamy, K.N. Nobi Singh, M. Veerappa and Lalita Kaushik for the Respondent. JUDGMENT K.N. Saikia, J. Special leave granted. These five appeals are from as many similar orders of the High Court of Karnataka at Bangalore dismissing the appellant company's criminal revision petitions impugning the respective orders passed by the Judicial Magistrate, First Class, Gokak, holding that the appellants' complaint against the respondents alleging offence under section 630 (1) ( b ) of the Companies Act, by not vacating the company's quarters as required by it even more than six months after retirement of the respondents, were barred by limitation and the same could not be taken into consideration. The first respondent in each of these criminal appeals was appointed on August 1, 1942, June 11, 1945, November 24, 1939, May 1, 1939, and January 23, 1937, respectively, in the service of the appellant-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Law Chronicle 462, wherein it was held that the offence under section 630 (1) of the Companies Act was not a continuing offence and the decisions of this court in Bhagirath Kanoria v. State of Madhya Pradesh with Bahadur Singh v. Provident Fund Inspector and Raja Bahadur Singh v. Provident Fund Inspector AIR 1984 SC 1688 ; [1986] 68 FJR 98 would not be of any assistance to the petitioner. Mr. A.S. Bobde, learned counsel appearing for the appellant company, submits that the offence under section 630 (1) ( b ) of the Companies Act, 1956, is a continuing offence and the learned courts below erred in holding to the contrary and dismissing the company's complaints on the ground of limitation. Mrs. Lalitha Kaushik, learned counsel for each of the first respondents, submits that when the first respondent, upon his retirement, failed to vacate and deliver possession of the company's quarter to the company, the offence must be taken to have been complete, and thereafter the right would accrue to the first respondent by adverse possession ; and that if this state of affairs continued till completion of the period of limitation, the company's right would be extinguished. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licence has been properly terminated, be sued or ejected as a trespasser if, after request and after the lapse of a reasonable time, he fails to leave the premises. Trespass in law of torts may be a continuing one. The authors write : "That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiffs land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing ; successive actions will lie from day to day until it is so removed : and in each action damages (unless awarded in lieu of an injunction) are assessed only up to the date of the action. Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law." Again, if the entry was lawful but is subsequently abused and continued after the permission is determined, the trespass may be ab initio. In 1610, six carpenters enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say : "We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed." Section 630 of the Companies Act reads as under ; "Penalty for wrongful withholding of property. (1) If any officer or employee of a company ( a )wrongfully obtains possession of any property of a company ; or ( b )having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and that the period of limitation ran therefrom tantamounted to finding that the first respondent did retire. "Officer" or "employee" in section 630 of the Companies Act includes both present and past officers and employees. In Baldev Krishna Sahi v. Shipping Corporation of India Ltd. [1987] 4 SCC 361; [1988] 63 Comp Cas 1 (SC), at paragraph 3 of the report, this court said : "Section 630 of the Companies Act, which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act. The section is in two parts. Sub-section (1) by clauses ( a ) and ( b ) creates two distinct and separate offences. First of these is the one contemplated by clause ( a ), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment to which he is not entitled. Normally, it is only the present officers and employees who can secure possession of any property of a company. It is also possible for such an officer or employee after termination of his employment to wrongfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as permitted to use the property of the company during his employment, wrongfully retains it or occupies the same after the termination of his employment. It is the wrongful withholding of such property, meaning the property of the company, after termination of the employment, which is an offence under section 630 (1) ( b ) of the Act". What then is the nature of this offence ? The question then is whether it is a continuing offence or not. According to Black's Law Dictionary, Revised Fourth Edition, "continuing offence" means a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy. In State of Bihar v. Deokaran Nenshi [1973] 1 SCR 1004 ; AIR 1973 SC 908, the question was whether the failure to furnish returns on the part of the owner of a stone quarry under regulation 3 of the Indian Metalliferrous Mines Regulations, 1926, even after a warning from the Chief Inspector was a continuing offence. Section 79 of the Mines Act, 1952, which provided that no court shall take cognizance of an offence under the Act unless a complaint was made within six months from the date of the offence and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y fenced. Its sub-section (2) provided that a factory in which there was contravention of the section would be deemed not to be kept in conformity with the Act. Section 135 provided a penalty for an occupier of a factory or workshop if he failed to keep the factory or workshop in conformity with the Act. Section 145 provided that information of the offence under section 135 shall be laid within three months after the date on which the offence came to the knowledge of the inspector of the district within which the offence was charged to have been committed. The contention was that, in May, 1905, and again in March, 1908, the fly-wheel was kept un-fenced to the knowledge of the Inspector and yet the information was not laid until July 22, 1908. The information, however, stated that the fly-wheel was unfenced on July 5, 1908, and that was the offence charged. It was held that breach of section 10 was a continuing breach on July 10, 1908, and, therefore, the information was in time. The offence under section 135 read with section 10 consisted in failing to maintain the factory in conformity with the Act. Every day the flywheel remained unfenced, the factory was maintained not in confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants were charged, namely, non-payment of the employer's contribution to the provident fund before the due date, was a "continuing offence" and, therefore, the period of limitation prescribed by section 468 of the Code could not have any application and it would be governed by section 472 of the Code, according to which a fresh period of limitation began to run at every moment of the time during which the offence continued. It was, accordingly, held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence. Section 472 of the Code of Criminal Procedure deals with continuing offences and says : "In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." The concept of a continuing offence does not wipe out the original guilt, but it keeps the contravention alive day after day. It may also be observed that the courts, when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of section 473 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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