TMI Blog2006 (11) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of the balance-sheet, etc., so laid shall be filed with the Registrar of Companies (hereinafter referred as complainant ) on or before 30-10-1999, and in case the balance-sheet, etc., was not laid before the annual general meeting; three copies thereof shall be filed with the complainant on or before the date on which the annual general meeting should have been held as per the said Act. Accused No. 2 (petitioner) and accused No. 3 being the officers of the company have failed to comply with the above statutory requirements of section 220 of the Act, in spite of the issuance of show-cause notice by the complainant in that behalf and therefore accused Nos. 2 and 3 are the officers in default within the meaning of section 5 of the Act. The default commenced on 31-10-1999, and it is a continuing offence within the meaning of section 472 of the Code of Criminal Procedure. The learned Magistrate took cognizance of the offence filed by the complainant in C.C. No. 387 of 2002 and issued process. Therefore, the petitioner moved this court under section 482 of the Code of Criminal Procedure for quashing the proceedings contending that he conducted the annual general meeting by 30-9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer and director shall include any person in accordance with whose directions or instructions the board of directors of the company is accustomed to act." "220. Three copies of balance-sheet, etc., to be filed with Registrar. (1) After the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar within thirty days from the date on which the balance-sheet and the profit and loss account were so laid, or where the annual general meeting of a company for any year has not been held, there shall be filed with the Registrar within thirty days from the latest day on or before which that meeting should have been held in accordance with the provisions of this Act, ( a )three copies of the balance-sheet and the profit and loss account, signed by the managing director, manager or secretary of the company, or if there be none of these, by a director of the company, together with three copies of all documents which are required by this Act to be annexed or attached to such balance-sheet or profit and loss account: Provided that in the case of a private company, copies of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pare and file with the Registrar a return containing the particulars specified in Part I of Schedule V regarding the various items enumerated thereunder. The failure to comply with any of the provisions contained under the Act attracts penal provision. 8. Learned counsel for the petitioner would contend that the offence for which the petitioner was charge sheeted is not a continuing offence ; that the balance-sheet should be laid before the annual general meeting, if not laid before the meeting, the same has to be filed before the complainant within 30 days from the date on or before which the annual general meeting should have been held. The offence, if any, is complete on expiry of such date to be filed. The present complaint is filed nearly after three years, which is barred by limitation. To substantiate his submission he placed reliance on the judgments aforementioned, which were sought to be relied before the learned Single Judge. 9. It is appropriate to consider the submissions in the light of the judgments on which reliance is placed. 10. In Krebs Biochemicals Ltd. s case ( supra ), failure to transfer unpaid dividend to special account within time stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the employer s contribution within the time prescribed under the Employees Provident Funds and Miscellaneous Provisions Act. 14. In the case of Deokaran Nenshi ( supra ), the issue before the Supreme Court was whether failure to submit return within the prescribed time under the Mines Act is a continuing offence or not. The Supreme Court after considering the various judicial pronouncements including that of the Privy Council tried to summarise what a continuing offence is : "Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable with fine only, can be decided by the trial court on the evidence let in by the parties. But there is no indication of holding by this Court that it is a continuing offence and proceedings cannot be quashed. 18. It is appropriate to notice another Division Bench of the Calcutta High Court in Luxmi Printing Works Ltd. v. Asstt. Registrar of Companies [1990] 69 Comp. Cas. 442, had an occasion to consider whether the prosecution launched and process issued for the offences punishable under sections 162(1) and 220(3) of the Companies Act are continuing offences within the meaning of section 472 of the Code of Criminal Procedure. The Division Bench after considering the judgments of the Supreme Court in Deokaran Nenshi s case ( supra ) and in Bhagirath Kanoria case ( supra ), held that the offence punishable under section 162(1) is a continuing offence and further held that the decision of the Division Bench in National Cotton Mills case ( supra ) can no longer be taken as good law particularly, in view of the earlier Division Bench decisions in Wire Machinery Manufacturing Corpn. Ltd. s case ( supra ) and Krishna Kumar Dalmia s case ( supra ), relied on in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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