ORDER
1. M/s. Ramachandran Chemicals Pvt. Ltd., (for short ‘the company’) is a company incorporated under the Companies Act, 1956 (for short ‘the Act’), having its registered office located at No. 42, Rajaji Road, Madras-1. Sri Jahanbus Harmushaw Tarapore, Sri Narayanswamy Srinivasan, Sri B. Sivanthi Adityan, Sri Narayanaswamy Ramachandra, Sri K. R. Ramabhadran and Sri K. Ramachandran are the directors of the said company.
2. Under R. 3-A of the Companies (Acceptance of Deposits) Rules 1975 (in short ‘the Rules’), every Company shall before the 30th day of April of each year deposit or invest, as the case may be a sum which shall not be less than 10 per cent of the amount of its deposits maturing during the year ending on the 31st day of March next following in any one or more of the four methods of investments prescribed therein. The company was stated to have committed defaults in complying with the provisions of R. 3-A thereof in respect of deposits maturing during the years ending with the 31st day of March, 1979, 1980, 1981 and 1982. The Directors, who are, in terms of sub-section (30) of S. 2 of the Act, officers of the company, were stated to have committed such defaults knowingly and wilfully and thus rendered themselves liable to punishment under R. 11 for contravention of R. 3-A thereof.
3. A show cause notice was stated to have been issued to the company and its directors bringing to their notice the contravention of the said rule. No convincing reasons were stated to have been given either by the company or its directors for such contravention.
4. The company and its directors were stated to have not only accepted, renewed and held deposits in excess of the prescribed limits but also failed to ensure repayment of such deposits within the time prescribed and thus contravened the provisions of sub-secs. (1) and (4) punishable under sub-secs. (5) and (6) of S. 58-A of the Act.
5. The Additional Registrar of Companies, having his office at ‘Shastri Bhavan’, 26, Haddows Road, Madras-6 laid two complaints in C.C. Nos. 1291 and 1292 of of 1983 on the file of the Additional Chief Metropolitan Magistrate (E.O, No. 1), Egmore, Madras arraigning the company and its directors as accused 1 to 7 for alleged violations or refractions of R. 3-A punishable under R. 11 of the Rules (former complaint) and sub-secs. (1) and (4) punishable under sub-secs. (5) and (6) of S. 58-A of the Act (latter complaint) alleging that the question of limitation will never arise for consideration as the contraventions complained of are continuing offences.
6. It is represented at the Bar that all the accused excepting Sri B. Sivanthi Adityan (Accused-4) admitted the offences and consequently they were sentenced to fine in a specified amount.
7. Before ever the trial commenced, accused 4 Sri B. Sivanthi Adityan came forward with the present actions to quash the criminal proceedings initiated against him, invoking the inherent jurisdiction of this Court under S. 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’).
8. Mr. V. Shanmugham, learned Counsel appearing for the petitioner-accused 4 would press into service, in a bid to quash the criminal proceedings the following two points for consideration :-
(1) The prosecutions launched are barred by limitation; and
(2) No show cause notice had been served upon the petitioner-accused 4 and therefore, he could, by no stretch of imagination, be construed as an ‘Officer in default’ in terms and tenor of S. 5 of the Act.
9. Mr. K. Ilias Ali, learned Additional Central Government Standing Counsel would however repel those submissions.
10. The period of limitation for taking cognizance of a complaint had been provided for under S. 468 of the Code. The limitation prescribed therefor is relatable to the quantum of sentence for the offences in respect of which prosecution had been launched. The period limitation shall be six months, if the offence is punishable with fine only; one year, if the offence is punishable with imprisonment for a term not exceeding one year and three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Pertinent it is to note that no period of limitation whatever had been prescribed as respects the offences punishable with imprisonment exceeding three years.
11. The refraction or violation of sub-secs. (1) and (4) are respectively punishable under sub-secs. (6) and (5) of S. 58-A of the Act. The punishment provided in the said sub-secs. (5) and (6) are imprisonment which may extend to five years, i.e., exceeding three years. Therefore, there can be on bar of limitation whatever for taking cognizance of complaints involving these offences. As such, it cannot at all be stated that taking cognizance of the complaint in C.C. No. 1292 of 1988 by the Court below was beyond the period of limitation.
12. The refraction or violation of R. 3-A is punishable under R. 11 of the Rules with fine which may extend to Rs. 500/-. For such an offence punishable with fine the period of limitation prescribed under clause (a) of sub-section (2) of S. 468 of the Code is only six months. The complaint having been taken cognizance of on 13th December, 1983 for alleged violations during the years ending with 31st day of March, 1979, 1980, 1981 and 1982 in the sense of not making deposits or investment as required thereof on or before the 30th day of April of the respective years, that is, beyond the period of six months, is clearly barred by limitation.
13. Learned Additional Central Government Standing Counsel would however contend that such a violation or contravention is a continuing offence, in respect of which no question of limitation can arise for consideration.
14. Then the moot question that arises for consideration is whether such a violation is a continuing offence.
15. Useful reference may be made to certain precedents emerging from the apex Court of this country to resolve the tangle posed in this case. In State of Bihar v. Deokaran Nenshi (1973) 1 SCWR 66 : (1973 Cri LJ 347). Their Lordships J. M. Shelat and H. R. Khanna, JJ. explained the concept of a continuing offence in paragraph 5, which is reflected as follows :
“5. 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 the rule or its assessee had not been prevented by any reasonable cause for not complying with the statutory obligation to make the return. The assessee challenged the imposition of penalty by preferring an appeal to the Appellate Assistant Commissioner who refused to interfere and dismissed the appeal. On further appeal, the Appellate Tribunal held that penalty was leviable under the 1961 Act but the amount of penalty had to be quantified according to the provisions of S. 28 of the Income-tax Act, 1922 (for short ‘1992 Act’). Applying the provisions of the 1922 Act, the Tribunal reduced the penalty to Rs. 400/-.
(a) At the instance of the Revenue the following question was referred to the High Court under S. 256(1) of the 1961 Act :-
Whether on the facts and in the circumstances of the case, the Tribunal was in law competent to reduce the penalty levied under S. 271(1)(a) to a figure lower than the sum equal to 2% of the tax for every month during which the default continued but not exceeding the aggregate 50% of the Tax ?
The High Court answered the reference in favour of the Revenue and against the assessee. The aggrieved assessee therefore agitated the matter before the Supreme Court.
(b) In the backdrop of such a factual situation, the Supreme Court came to consider the question as to whether the default committed in filing the return within the time stipulated for such filing has to be construed in law as a continuing default.
(c) In answering the question, the Supreme Court expressed thus :
“The distinctive nature of a continuing wrong is that the law that is violated makes the wrong-door continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature …….. In “Words and Phrases”, Permanent Edition, under the head “Continuing Offence”, instances have been given which indicate that as long as the default continues the offence is deemed to repeat and, therefore, it is taken as a continuing offence. As has been appropriately indicated in Corpus Juris Secundum, Vol. 85, p. 1027, accrual of penalty depends upon the terms of the statute imposing it and in view of the language used in S. 271(1)(a) of 1961 Act, the position is beyond dispute that the Legislature intended to deem the non-filing of the return to be a continuing default. – the wrong for which penalty is to be visited, commences from the date of default and continues month after month until compliance is made and the default comes to an end. The rule of de die in diem is applicable not on daily but on monthly basis …………. The imposition of penalty not confined to the first default but with reference to the continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. Without sanction of law no penalty is imposable with reference to the defaulting conduct. The position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law, he continues to guilty of the infraction and exposes himself to the penalty provided by law.”
16-17. In the case of State of Bihar (1973 Cri LJ 347) (SC) (supra), the respondents were the owners of a stone quarry. They failed to furnish to the Chief Inspector the annual returns for the year 1959 by the 21st of January, 1960. On March 28, 1960, the Chief Inspector drew their attention to the said failure and warned the respondents that if they failed to furnish the returns within two weeks from the date of the said letter, i.e., by April 11, 1960, proceedings would be instituted against them under the Act. On their failure to do so, despite the said warning, a complaint was filed in the Court of the Magistrate, Dhanbad on April 12, 1961.
(a) Section 66 of the Mines Act, 1952 provides that a person omitting to file any return, notice etc., in the prescribed form or manner or at or within the prescribed time required by or under the Act to be made or furnished shall be punishable with fine which may extend to Rs. 1,000/-. Section 79, however lays down that no court shall take congizance of any offence under this Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months of the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the Section provides that if the offence in question is a continuing offence the period of limitation shall be computed with reference to every point of time during which the said offence continues. Under Regulation 3 of the Indian Metaliferous Mines Regulations, 1926, an owner, agent or manger of every mine is required to forward to the District Magistrate and to the Chief Inspector the annual returns in respect of the preceding year in the forms prescribed therein and on or before the 21st of January, in each year.
(b) One of the two questions agitated before the trial Court, in the High Court and before the apex Court was whether the complaint was barred by limitation, it having been filed more than a year after the default, which occurred on January 21, 1960.
(c) In answering the said question the Supreme Court said in paragraph 9 thus :
“9. Regn. 3 read with S. 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Regn. 3 clearly indicates that an owner, manager etc., of a mine would be liable to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns on or before January, 21, of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant year and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Regn. 3 is complied with. In other words, Regn. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made, a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.”
18. In the case on hand, the legislative intention expressed in couching R. 3-A is not indicative of the refraction or violation of such a rule as a continuing offence. To put it otherwise, refraction or violation contemplated therein is committed once and for all attracting penal consequences under the first limb of R. 11 alone, in the sense of the same liable to be punished with fine, which may extend to Rs. 500/-. Once such a refraction or violation is not a continuing offence, it goes without saying that the complaint, which had been taken cognizance of by the Court below on 13th December, 1983 is clearly barred by time, as having been filed beyond the period of six months from the dates of alleged violations, namely, 31st day of March of the year 1979, 1980, 1981 and 1982, in the sense of not making deposits or investment as required thereof or before the 30th day of April of the respective years.
19. Sub-section (30) of S. 2 of the Act defines ‘officer’ by means of inclusive definition and it is as under :-
“2. In this Act, unless the context otherwise requires,
(30) ‘officer’ includes any director, managing agent, secretaries and treasurers, manager, or secretary or any person in accordance with whose directions or instructions the Board of directors of any one or more of the directors is or are accustomed to act and also includes –
(a) where the managing agent or the secretaries and treasures is or are a firm, any partner in the firm;
(b) Where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporate but save in Sections 477, 478, 539, 543, 545, 621, 625 and 633 does not include an auditor.”
20. The meaning of ‘officer who is in default’ is couched in S. 5 (prior to amendments) of the Act, which runs as under :-
“5. Meaning of ‘officer who is in default’ – For the purpose of any provision in this Act which enacts that an officer of the company who is in default shall be liable to any punishment, or penalty, whether by way of imprisonment, fine or otherwise, the expression ‘officer who is in default’ means any officer of the company who is knowingly guilty of the default, non-compliance, failure, refusal or contravention mentioned in that provision or who knowingly and wilfully authorises or permits such default, non-compliance, failure, refusal or contravention.”
21. The combined effect of sub-section (30) of S. 2 and S. 5 is that all the directors of the company cannot at all be construed as ‘officers in default’, unless each of the directors is an ‘officer in default’ within the meaning of S. 5 of the Act.
22. Learned Counsel for the petitioner would however contend that the petitioner-Accused 4 cannot at all be construed as an ‘officer in default’ within the meaning of S. 5 of the Act, inasmuch as a show cause notice had not at all been served upon him before ever the prosecution was launched against him. Significant it is to note here that the allegations in the complaint do reveal the issuance of the notice to the company and all its directors and no convincing reply came forth from either the company or any of its directors. But the complaint is silent as to the date of service of notice on the company and all its directors, inclusive of the petitioner-Accused-4. In such a circumstance, learned counsel for the petitioner asserted that no service of notice was there on him – accused 4.
23. Since service of notice is a crucial factor for determining the question as to whether the petitioner-accused 4 could be construed as an ‘officer-in default’; this Court directed learned Additional Central Government Standing Counsel to produce the file to verify the tenability or otherwise of the vociferous contention raised by learned counsel for the petitioners. Accordingly a file had been produced before this Court for perusal. A perusal of the file reveal that show cause notice had in fact been served not only on the company but also on all the directors of the company, excepting the petitioner-accused 4, and the notice so sent to the petitioner-accused 4 had been returned as ‘not found’. Therefore it is clear that there was no proper service of notice on the petitioner-accused 4 before ever prosecution is launched against him.
24. The effect of non-service of notice before prosecution came to be considered in the decision in V. M. Thomas v. Registrar of Companies (1980) 50 Com Cas 247 : (1979 Tax LR 2110) by the Kerala High Court.
(a) In that case, prosecution was launched against the company, its managing director and another director. The company and its managing director pleaded guilty, but the other director disputed his liability. The other director was also found guilty and convicted. He preferred a revision to the High Court. The Kerala High Court in that case found that a notice was sent to the director by the Registrar of Companies but it was returned unserved. Taking that fact into consideration, the Kerala High Court held that it cannot be said that in spite of the petitioner before it having been cautioned in time, the default took place, and, therefore he had knowingly and wilfully authorised or permitted the default or non-compliance.
25. The view thus expressed by the Kerala High Court had been quoted with approval by Bhaskaran, J., (as he then was), a learned Judge of this Court in the case of Assistant Registrar of Companies v. Southern Machineries Works Ltd. (1986) 59 Com Cas 670. In that case, the Assistant Registrar of companies filed complaints against several companies and their directors under Ss. 162 and 220 of the Act for failure to file annual returns and balance-sheets. Notices were issued to all the directors, which were served on them, but no reply was received from any of the directors. Thereafter, the Assistant Registrar launched prosecutions after giving the directors sufficient opportunity. The company and the directors contended that prosecutions could not be launched against all the directors for failure to comply with any provision of the Act but should be filed only against the company and those directors who are in default as defined under S. 5 of the Act and since the complaint had mechanically stated that ‘the company and its directors are under statutory obligation to file the statutory returns and since they failed to file the returns, all of them are liable, the complaints were not maintainable and prosecutions could not be launched.
26. Learned Judge, following the dictum of the Kerala High Court, as stated supra, expressed thus :
“From this observation, conversely it follows, that if notice is served and if no reply is received, it must be held that that officer has knowingly committed default.”
So saying, learned Judge held that the complaint filed by the Assistant Registrar of Companies against the company and all its directors treating them as officers in default is maintainable.
27. From the discussion, as above, it goes without saying that the petitioner-accused 4 cannot at all be construed to be an ‘officer in default’ under the provisions of S. 5 of the Act.
28. For the reasons as above, the prosecutions as launched against the petitioner-accused 4 deserve to be quashed.
29. In the result, both the petitions are allowed and the proceedings in C.C. Nos. 1291 and 1292 of 1983 on the file of the Additional Chief Metropolitan Magistrate (E.O. No. 1), Egmore, Madras as against the petitioner-accused 4 shall stand quashed.
30. Petitions allowed.