TMI Blog2020 (4) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... LD THAT:- The complaint was filed by a public servant in his official capacity and admittedly, he was transferred during the pendency of the present case. Witness CW-1 Ms. Shefali Gupta is presently posted as Assistant Registrar of Companies and derives her knowledge on the basis of official record. The argument of CW-1 being an incompetent witness is rejected. Whether the complaint is barred by limitation? - HELD THAT:- The offence U/s 165 of Companies Act is continuing in nature till the directorship of accused remains in more than 20 companies after 01.04.15 . As per Ex. CW-1/2 the accused was shown as director in more than 20 companies as on 26.07.17 i.e. the date when Ex. CW-1/2 was downloaded from MCA portal. However, complainant themselves have filed copy of letter dt. 23.02.17 of the accused which is Ex. CW-1/4 wherein accused has detailed that his directorship is within the permissible limit as provided U/s 165 of Companies Act - The resignation of accused has not been filed with the complainant office. Moreover, offence U/s 165 is punishable with fine only for each day during which the default continues. The present complaint is within limitation as offence U/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 17.07.2018, notice U/s 251 Cr.P.C. was served upon the accused for the contravention of Section 165(3) which is punishable under Section 165(6) of the Act to which he pleaded not guilty and claimed trial. 5. Vide order dt. 09.08.2018 the application for substitution of complainant was filed by the ROC due to transfer of Dr. Afsar Ali and Ms. Shefali Gupta, AROC was substituted in the present complaint. In order to substantiate its allegations, the complainant examined Ms. Shefali Gupta, AROC as CW-1. 6. Ms. Shefali Gupta, AROC as CW-1 stated that she has been authorized to depose on behalf of complainant Dr. Afsar Ali who has been transferred to the office of ROC, Chandigarh and is deposing on the basis of available records. CW-1 reiterated the facts of the case as alleged in the complaint. In her testimony, she stated that accused having DIN No. 00656697 is/was Director in more than the maximum number of companies prescribed under Section 165 of the Act. She proved certified copies of the DIN application details as Ex. CW-1/1 and proof of directorship of accused in companies as Ex. CW-1/2. She further stated that show cause notice dt. 06.03.17 was issued to the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction in respect of each such company. Section 165 (6) of Companies Act, 2013 provides that if a person accepts an appointment as a director in contravention of sub section (1), he shall be punishable with fine which shall not be less than five thousand rupees but which may extend to twenty-five thousand rupees for every day after the first during which the contravention continues. 12. Whether the complainant has proved the documents filed with the complaint : Ld. Company Prosecutor had argued that in terms of Section 397 and 399 of Companies Act 2013, the documents have been duly proved. Section 397 of Companies Act 2013 provides that any document reproducing or derived from returns and documents filed by a company with the Registrar on paper or in electronic form or stored on any electronic data storage device or computer readable media by the Registrar, and authenticated by the Registrar or any other officer empowered by the Central Government in such manner as may be prescribed, shall be deemed to be a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder without further proof or production of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before NCLT, New Delhi in the proceedings filed by the accused U/s 441 Companies Act 2013 for composition of default U/s 165(1) of the Companies Act. Copy of the said report is filed alongwith the application U/s 468 Cr.P.C. On the other hand, Ld. Company Prosecutor argued that offence is a continuing one and therefore, the provisions of limitation as provided U/s 468 Cr.P.C. are not applicable. 16. The offence U/s 165 of Companies Act is continuing in nature till the directorship of accused remains in more than 20 companies after 01.04.15 . As per Ex. CW-1/2 the accused was shown as director in more than 20 companies as on 26.07.17 i.e. the date when Ex. CW-1/2 was downloaded from MCA portal. However, complainant themselves have filed copy of letter dt. 23.02.17 of the accused which is Ex. CW-1/4 wherein accused has detailed that his directorship is within the permissible limit as provided U/s 165 of Companies Act. Moreover, the report dt. 04.02.19 mentions in para 11 that as per the petition, the director Mr. Roop Kishore Madan had resigned from the post of Directorship in the other remaining companies where he was exceeding the specified limit of 20 Directorship w.e.f. 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing offence. If continuance of an act or omission is an offence, it shall be a continuing offence until the act is discontinued or the omission is abated. If this test is applied in the cases before us, the offences are to be regarded as continuing offences. 19.. In the case of Gokak Patel Volkart Ltd. Vs. Dundayya Gurushiddaiah Hiremath Ors : (1991) 2 Supreme Court cases 141 , the question was whether offence U/s 630(1)(b) of the Companies Act is a continuing offence for the purpose of limitation. Hon'ble Supreme Court after discussing the definition as provided in Black's Law Dictionary (Revised 4th edn.), held that 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. It was further held in para 21 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 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 of its req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. 21. Hence, in view of the above case law, I am satisfied that the present complaint is within limitation as offence U/s 165 of the Companies Act, 2013 is a continuing offence. Therefore, the argument of Ld. Counsel that complaint is barred by limitation is humbly rejected. 22. Whether the accused Roop Kishore Madan is/was Director in more than 20 companies on the date of filing of the complaint: The onus is upon the complainant to prove that accused Roop Kishore Madan was Director in more than the number of companies which is permissible under Section 165 of Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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