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TMI Blog2009 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... 995. However, impugned complaint was filed by the respondent on 7-5-2002, i.e., after 7 years while limitation period prescribed under section 468(2)(c) is 3 years as maximum penalty prescribed for violation of sections 63 and 628 of Companies Act is of two years imprisonment. 2. The defence for filing delayed complaint has been given in para 6 of the complaint (page 22H of petition) that sanction/permission is required from Department of Company Affairs (hereinafter referred to as 'DCA') for filing the impugned complaint and the permission was given vide letter dated 3-3-2002. The respondent in their reply to petition under para 8(c) says that there is no delay in filing the complaint under sections 468, 469, 470,471 and 472 of Cr. P.C. and says that offence came to their knowledge when they got sanction letter dated 3-3-2002 from DCA. 3. The identical issue of limitation, sanction from DCA, delayed complaint filed by respondent and identical defence given by Registrar of Companies has recently been settled by this Court in Crl. M.C. 1777/2005 titled as Sunair Hotels Ltd. v. RoC vide order dated 18-3-2009. 4. In that case also, the complaint said to have been filed within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectus.-(1) Where a prospectus issued after the commencement of this Act includes any untrue statement, every person who authorised the issue of the prospectus shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to fifty thousand rupees, or with both, unless he proves either that the statement was immaterial or that he had reasonable ground to believe, and did up to the time of the issue of the prospectus believe, that the statement was true. (2) A person shall not be deemed for the purposes of this section to have authorised the issue of a prospectus by reason only of his having given- (a )the consent required by section 58 to the inclusion therein of a statement purporting to be made by him as an expert, or (b )the consent required by sub-section (3) of section 60." 8. Section 628 of the Companies Act which is the other provision for which the petitioner are sought to be prosecuted also provided punishment of two years only. The said provision also reads as under : "628. Penalty for false statements.-If in any return report, certificate, balance sheet, prospectus, statement or other document required by or for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted by the petitioner expired long ago before the filing of the complaint which has been filed sometimes in 2004. 9. The only explanation given by the respondents to justify the delay is that the sanction for lodging the prosecution against the petitioner-company was required to have obtained prior to the filing of this complaint which was received from the Department of Company Affairs, Shastri Bhawan, New Delhi. They have also relied upon the provisions of section 470(3) of the Code of Criminal Procedure and submits that in the circumstances, the period taken by them in obtaining the prior sanction which they say has to be excluded from the period of limitation as provided under section 468 of the Cr. P.C. Since the sanction was received only on 13-4-2004 and, therefore, filing of the complaint within 6 months thereafter is justified and brings the complaint within limitation. 10. Coming to the judgments which have been relied upon by the petitioner I find that in the case of Vinod Kumar Jain (supra) it has been held :- (4) The petitioner appeared in the trial court in obedience to the process issued to him but he has challenged the legality and validity of the summoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of an offence after the expiry of period of limitation provided therefore, if it is satisfied on the facts and in the circumstances of the case that (i) the delay has been properly explained; or that (ii) it is necessary so to do in the interests of justice. (8) It is, thus, manifest that if a complaint is prima facie barred by time when it is filed, it becomes necessary for the prosecuting agency to explain the delay and seek condensation of the same. Unless the delay is condoned the Court cannot take cognizance of the complaint. In other words, the Magistrate has to apply his mind to the question of limitation at the pre-cognizance stage and satisfy himself that delay has been properly explained or that it is necessary to condone the delay in the interests of justice. The Magistrate cannot hasten to issue the process without first recording his satisfaction that the delay was satisfactorily explained to him or that he was of the view that the condensation of delay was in the interests of justice. It is highly doubtful that the Court can condone the delay and, thus, extend limitation subsequent to the taking of cognizance of the offence. Of course, the condensation of delay may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s called upon to face the prosecution in a time-barred matter. As observed by a Division Bench of this Court in State (Delhi Administration) v. Anil Puri ILR 1979 Delhi 350." (p. 16) 11. In the present case, the respondents have submitted that it is only when a balance sheet was filed by the petitioner for the year ending 31-3-2001 that they came to know that the statement made in the prospectus was not correct and, accordingly, they gave a show-cause notice which was given on 21-5-2002 and then they have filed a complaint dated 14-1-2004. It is submitted that the delay had been caused because of obtaining sanction, etc., from the department concerned. 12. However, when in the complaint it is not stated as to from which date the limitation starts so as to bring the complaint within limitation nor it is stated as to when they applied for obtaining sanction of the competent authority to file the complaint and when the sanction was granted, it does not lie in the mouth of the respondents to submit that the complaint was within limitation. 13. Accordingly, the petition is allowed and the complaint filed by the respondents is dismissed as barred by limitation. The order of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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