TMI Blog2009 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents is dismissed as barred by limitation. - CRIMINAL M.C. NO. 138 OF 2005 - - - Dated:- 25-5-2009 - MOOL CHAND GARG, J. Abhay K. Das and Prem Kumar Jha for the Petitioner. Dalip Mehra and Rajiv Ranjan Mishra for the Respondent. JUDGMENT 1. The present petitioner is for quashing of complaint (C.C. No. 461/2002, dated 7-5-2002). The RoC/Respondent has filed the said complaint under sections 63 and 628 of Companies Act, 1956 alleging mis-statement/wrong statement in prospectus dated 18-4-1995 (of M/s. Cilson Finance Investment Ltd.) against its directors/signatories. The prospectus was for public issue of 10,00,000 equity shares of Rs. 10 each. This has been admitted by the respondent (U/para 2 3) of complaint in page No. 22F of petition) that the company had filed prospectus dated 18-4-1995 with the office of respondent and the prospectus was also got registered by respondent before raising public issue. Thus, the respondent was fully aware about the factum of said prospectus from very inception, i.e., 18-4-1995. However, impugned complaint was filed by the respondent on 7-5-2002, i.e., after 7 years while limitation period prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed by the respondent is clearly barred by limitation inasmuch as for the purpose of computing the time required for obtaining the sanction of the Government, it was necessary for the respondent to have specified the date on which the application was made for obtaining sanction/permission for computing the period of limitation because as per Explanation, only that period which could have been excluded was the time required for obtaining the sanction of the Government or any authority can only be excluded, if an application is filed after a period of 3 years then the question of exclusion does not arise. The identical issue of limitation has also been decided in Rajiv Kumar v. RoC [2009] 92 SCL 283 (Delhi) where the complaint filed under section 628 of Companies Act, 1956 by RoC was quashed. 7. It is submitted that the punishment for making a mis-statement in a prospectus is punishable under section 63 of the Companies Act which provides punishment of two years. The said section for the sake of reference is reproduced hereunder : "63. Criminal liability for mis-statements in prospectus. (1) Where a prospectus issued after the commencement of this Act includes any u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with fine which may extend to fifty thousand rupees. 7. Similarly, it will also be appropriate to take note of section 468 of Cr. P.C. 468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be ( a )Six months, if the offence is punishable with fine only; ( b )One year, if the offence is punishable with imprisonment for a term not exceeding one year; ( c )Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." (p. 15) It was further held : "8. In view of the aforesaid it is apparent that the limitation to take cognizance of the offence alleged to have been committed by the petitioner ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in sub-section (2) thereof after the expiry of the period of limitation prescribed in clauses ( a ), ( b ) and ( c ) of the sub-section. Obviously the bar of limitation operates before the Court takes cognizance of an offence. Under clause ( a ) of sub-section (2) of section 468, the period of limitation is six months if the offence is punishable with fine only as is admittedly the position in the instant case. Section 469 of the Code prescribes the terminus a quo for the commencement of period of limitation. It is the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence, the first day on which such offence comes to the knowledge of such person whichever is earlier. In the instant case, the contention of the respondent-complainant is that he came to know of the commission of offence on 24-1-1981 when he perused the report of the Inspecting Officer Shri O.P. Chadha. Obviously, therefore, the complaint was hopelessly barred by time on the date of its institution. (7) Section 473 of the Code, however, provides that notwithstanding anything contained in the foregoing provisions the court may take cognizance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. (10) Obviously an accused person acquires a valuable right the moment his prosecution is barred by limitation. Hence, that right cannot be taken away except in accordance with the provisions of law. It is, therefore, imperative for the Court taking cognizance of the offence to apply its judicial mind as to whether the prosecution has satisfactorily explained the delay in launching prosecution at the pre-cognizance stage, i.e., when the Magistrate applies his mind for the purpose of proceeding under section 200 and the succeeding sections in Chapter 15 of the Code. Since the discretion vesting in the Magistrate to condone the delay or not has to be judicially exercised, the principles of natural justice require that the accused must be afforded an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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