ORDER
G. Sasidharan, J.
1. A person cannot be tried again for the offence for which he had already been tried or on the same facts for any other offence for which a different charge from the one made against him might have been made under S. 221(1) Cr. P.C. or for which he might have been convicted under sub-s. (2) of that section is the principle embodied in S. 300 Cr. P.C. The question whether prosecution under S. 58A(5)(a) and (b) and 58A(6)(a) and (b) of the Companies Act will be hit by S. 300 Cr. P.C. for the reason that the same persons had already been tried for the offence punishable under R. 11 of the Companies (Acceptance of Deposits) Rules, 1975 for violation of R. 3A and R. 4A of the said rules arises for consideration in the revision.
2. The first petitioner in this revision is a private limited company engaged in the manufacture of plywood and timber products and the other petitioners are the Directors of the company. The first respondent gave a complaint in the trial court alleging that the petitioner committed offences under S. 58A(5)(a) and (b) and S. 58A(6)(a) and (b) of the Companies Act, 1956 (hereinafter referred to as “the Act”). The allegation against the petitioners is that as per the statement given by the petitioners in respect of deposits as on 31.3.1992 filed by the Company in the office of the complainant, it was seen that the company had accepted or renewed deposits for Rs. 1,19,000/- in excess of the limit prescribed under the rules and that even though the Company ought to have repaid the deposits accepted in contravention of the rules within 30 days from the date of acceptance of such deposits as provided under S. 58A(4) of the Act, the Company failed to repay the amount within the time limit. After trial, the trial court acquitted the petitioners. The first respondent filed appeal in this Court as Crl. Appeal No. 134 of 1987 and this Court set aside the acquittal and remanded the case for fresh disposal.
3. After remanded, the trial court took additional evidence and the petitioner were found guilty and they were convicted. The first petitioner was sentenced to pay a fine of Rs. 2,38,000/- under S. 58(5)(a) and a fine of Rs. 1,19,000/- under S. 58A(6)(a) of the Act. The second petitioner was sentenced to undergo Simple Imprisonment for one month and to pay a fine of Rs. 2000/- under S. 58A(5)(b) of the Act and in default of payment of fine, to undergo Simple Imprisonment for 15 days more. The third petitioner was sentenced to undergo Simple Imprisonment till the arising of the court and to pay a fine of Rs. 2000/- and in default of payment of fine, to undergo Simple Imprisonment for 15 days under S. 58A(5)(b) of the Act. Similar sentences were imposed on them for the offences under S. 58A(6)(b) of the Act.
4. Petitioner filed Crl. Appeal No. 17 of 1993 in the Session Court Ernakulam. The petitioners were convicted for the very same offences in relation to different periods in C.C. Nos. 52/1985, 53/1985 and 54/1985 and they had filed appeals challenging the conviction and sentence in those cases. All the four appeals were disposed of by the learned Sessions Judge by a common judgment. The appellate court set aside the conviction and sentence in C.C. Nos. 52/1985, 53/1985 and 54/1985 and dismissed Crl. Appeal No. 17 of 1993 and hence this revision has been filed.
5. The first respondent earlier filed a complaint in the court of the Chief Judicial Magistrate, Ernakulam against the petitioners alleging that the first petitioner-Company had accepted deposits from the public or share-holders to the tune of Rs. 1,19,000/- in contravention of R. 4A of the Companies (Acceptance of Deposits) Rules, 1975 (hereinafter referred to as ‘the Rules’). Prosecution initiated on the basis of that complaint culminated in the dismissal of the complaint on the ground of limitation. There was another case, S.T. No. 18 of 1985 on the file of the Judicial Magistrate of the First Class, Kannur against the petitioners alleging that they did not comply with the requirements of R. 3A of the Rules. The offence alleged to have been committed by the petitioners in the above case was punishable under R. 11 of the Rules. In that case, the petitioners pleaded guilty of the charge and they were convicted and sentenced. According to the petitioners, the present prosecution is barred under S. 300 Cr. P.C. for the reason that the prosecution is launched on the basis of the same set of facts.
6. The present petitioner filed Crl. Miscellaneous Cases before this Court to quash the complaint in those cases as well as in the other three cases against them and this Court dismissed all the above petitions. The question whether the prosecution would be barred under S. 300 Cr. P.C. was also considered by this Court while dismissing the petitions filed for quashing the complaint. But subsequently, when the appeals were disposed of on setting aside the conviction and sentence and remanding the case, it was made clear that the trial court could consider the question regarding the bar under S. 300 Cr. P.C. despite the order of this Court in the Crl. Miscellaneous Cases filed for quashing the complaints. After remand, the trial court considered the question whether the prosecution would be barred under S. 300 Crl. P.C. and came to the conclusion that there will not be any bar. The appellate court agreed with the trial court in its finding on the above question.
7. The allegation in the present complaint is that the company accepted deposits in excess of the limit prescribed and that they failed to make repayment of the deposits in contravention of the provisions of law within 30 days from the date of acceptance of such deposits. In the complaint filed earlier by the first respondent in which the allegation was that the company contravened the provision in R. 3A of the Rules, the accusation was that the petitioners did not comply with the condition requiring advertisement for inviting deposits. R. 4A of the above Rules says that where a company intends to accept deposits without inviting or allowing or causing any other person to invite such deposit shall before accepting deposits deliver to the Registrar for registration a statement in lieu of advertisement containing all the particulars required to be included in the advertisement by virtue of sub-r. (2) of R. 4 and duly signed in the manner provided in sub-r. (4) of that Rule. In the other complaint which had been filed by the first respondent, the allegation was that the company failed to maintain the liquidity of the assets as required by R. 3A of the Rules. It cannot at all the said that the present complaint is alleging commission of the same offence. The present prosecution is for the commission of an offence punishable under the provisions of the Act. The present complaint is on the basic of a different ground that the Company accepted deposits in excess of the limit and did not repay the deposits within 30 days from the date of acceptance of such deposits.
8. S. 300 Cr. P.C. provides that so long as an order of acquittal or conviction at a trial held by a court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom. The above Section also bars prosecution on the basis of some facts for any other offence for which a different charge from the one made against him might have been made under S. 22(1) or for which he might have been convicted under S. 221(2) Cr. P.C. A reading of sub-s. (1) of S. 300 Cr. P.C. would make it clear that subsequent prosecution on the same facts for any other offence can be had only if the offence sought to be tried subsequently is one for which charge would not have been made in the previous prosecution under sub-s. (1) of S. 221 or for which he might not have been convicted under sub-s. (2) thereof.
9. S. 221 Cr. P.C. deals with charging the accused regarding commission of offence where it is doubtful what offence has been committed by him. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences. Sub-s. (1) of S. 221 of the Code also provides that such a person may be charged in the alternative with having committed some one of the said offences. In such a case, if the accused in charged with one offence and it appears in evidence that the committed a different offence for which he might have been charged under the provisions of Sub-s. (1), he may be convicted for the offence which he is shown to have committed although he is not charged with it. A reading of sub-s. (1) of S. 300 along with s. 221 of the Code would make it clear that when a subsequent prosecution is made on the basis of some facts for any other offence, the bar will be there only if the other offence for which subsequent prosecution is made, is one for which a different charge from the one made against him would have been made under sub-s. (1) of S. 221 Cr. P.C. or for which the person prosecuted might have been convicted under sub-s. (2) thereof.
10. Sub-s. (2) of S. 300 Cr. P.C. says that a person acquitted or convicted of any offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-s. (1) of S. 220 Cr. P.C. S. 220(1) of the Code provides that if in one series of acts so connected together as to form the same transaction, more offences that one are committed by the same person, hey may be charged with an tried at one trial for every such offence. A person may commit more offences than one is one series of acts which forms the same transaction. Though different offences are committed by a person in the same transaction, S. 220(1) of the Code allows charging of such person and trying at one trial all the offences committed by him in one series of acts so connected together as to form the same transaction. What S. 300(2) Cr. P.C. says is that even though a person who committed various offences in one series of acts so connected together as to form the same transaction has not been charged with and tried for such offences, he can be afterwards tried for that distinct offence for which he has not been charged earlier, provided consent of the Government is obtained.
11. S. 300 Cr. P.C. becomes applicable when the accused had already been tried by a court of competent jurisdiction and the result of that trial had been either conviction or acquittal. It is also necessary for the first part of sub-s. (1) of S. 300 to become applicable that the prior prosecution and the subsequent prosecution must be for the same offence. There is prohibition in the latter part o the above sub-section for subsequent prosecution for any other offence on the same facts for which a different charge from the one made against him might have been made under sub-s. (1) of S. 221 Cr. P.C. or for which he might have been convicted under sub-s. (2) thereof.
12. In order to ascertain whether there will be a bar as envisaged under S. 300 Cr.P.C., it has to be seen whether the evidence necessary to support the second accusation would have been sufficient to support a legal conviction upon the first. The subsequent trial of the offence can be said to be upon the same facts in case the evidence in the first case would have supported the conviction for the offence charged in the second case. One of the earlier prosecutions was for acceptance of deposits in violation of R. 4A of the Rules. It was necessary as per R. 4A for every company intending to invite or allowing or causing any other person to invite deposits to issue an advertisement for the purpose of a leading English newspaper and in one vernacular newspaper circulating in the State in which the registered office of the Company is situated. The other prosecution was on the allegation that the accused failed to comply with the requirement of R. 3A of the Rules failing to maintain the liquidity of assets as required in that rule. In the present prosecution, the allegation was that deposits were accepted in excess of the limit and that repayment was not made within 30 days from the date of acceptance of such deposits. That would indicate that the offence will be complete in the present prosecution only if repayment of deposits was not made within 30 days of receipt of deposits. For proving commission of offence in this case, one of the facts to be proved is that repayment was not made within 30 days from the date of receipt of the deposits. This is a fact which was not necessary to be alleged and proved in the prior two prosecutions and hence it cannot be said that the prior prosecutions and the present case are on the basis of the same facts. Present prosecution is not barred under S. 300 Cr. P.C.
13. Another ground taken up in the petition is that the findings of the Courts below that the Company accepted deposits in violation of S. 58 A of the Act is not supported by evidence on record. According to the petitioners the evidence is not sufficient to prove who the depositors are and what amounts were received from them. There is nothing to show that the conclusion arrived at by the trial court as well as the appellate court is not on the basis of legal evidence or inadmissible evidence.
14. Another ground taken up in the Revision Petition is that the finding of the courts below that petitioners 2 and 3 are “officers in default” is not correct. This contention is seen to have been considered by the appellate court. The observation in the judgment of the Appellate Court is that the second petitioner was the Managing Director and the Third petitioner was one of the Directors of the Company and that the affairs of the Company were managed by petitioners 2 and 3. All the statements filed by the Company under R. 10 are stated to have been signed by the second petitioner. There appears to be no illegality or irregularity in the finding of the courts below that the petitioners were “officers in default”. There is no merit in this revision and hence it is liable to be dismissed.
15. The Crl. Revision Petition is accordingly dismissed.