PYLO LUKA Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) This is a petition filed by one Pylo Luka Muricken, Liquidator, Oriental Union Bank Ltd. (in liquidation), Kaduthuruthy, praying that the order passed by the Registrar of Companies under S.611(2) of the Companies Act, 1956, directing him to pay additional fee may be set aside on the ground that, there was prosecution against him for failure to file the statements required under the Companies Act in time, that the learned Chief Judicial Magistrate, Ernakulam, who tried the case, acquitted him, and therefore, the present order of the Registrar is "barred by res judicata" and is opposed to Art.20(2) of the Constitution of India. An affidavit has been filed by the Registrar of Companies stating the facts of the case and the circumstances under which he happened to levy additional fee under S.611(2) of the Companies Act, 1956, which will hereinafter be called 'the Act'. It is not disputed that there was great delay, on the part of the petitioner in filing the statements required to be filed under the Act and therefore, the Registrar filed complaints under S.551(5) of the Act against the petitioner before the Chief Judicial Magistrate's Court, Ernakulam, for his failure to file the statements of accounts for the period from 15-71971 to 15-7-1973. After the institution of this complaint, the petitioner requested the Registrar to grant time to submit the statements of accounts, on the ground that he was suffering from Asthma. Before the criminal court, the petitioner filed a petition under S.633(1) of the Act praying for the relief thereunder. No evidence was adduced on behalf of the petitioner and the learned Magistrate relieved the petitioner finding that he has acted honestly and reasonably. It was argued that this amounted to an acquittal. The judgment in this case has not been produced on behalf of the petitioner. It cannot be said that the granting of relief under S.633 of the Act in a trial for failure to file the statements within time can be equated with an order of discharge or acquittal. The Registrar in his affidavit has stated that the petitioner was relived by the Magistrate only from his liability to pay fine under S.551(5) of the Act and not from paying filing fee or additional fee of the documents filed late as required under S.611 of the Act. The imposition of fine under S.551(5) in a prosecution for failure to file statements as required under S.551(1) of the Act is a punishment; while the determination of additional fee under S.611(2) does not partake the nature of a penalty. The power to levy additional fee, as is clear from the sub-section itself, is without prejudice to any other liability. S.611(2) of the Act reads thus:

(2.) S.20 of the Constitution deals with certain fundamental principles of criminal jurisprudence. The fundamental right guaranteed in Art.20(2) enunciates the principle that no citizen should be put in jeopardy of his life or liberty more than once for the same offence. This Article incorporates within its scope the plea of autrefois convict as known to the British Jurisprudence or the plea of double jeopardy as known to the American Constitution. No one ought to be twice punished for one offence. (Nomo bis debet puniri pro uno delicto) It is essential for the application of clause (2) of Art.20, that (1) there must have been a previous prosecution, (2) the accused must have been punished at that prosecution, (3) subsequent proceeding also must be one for the prosecution and punishment of the accused and (4) the proceedings on both occasions must be in relation to the same offence. In order to attract this clause, the prosecution must have ended in punishment. The proceedings contemplated under this Article therefore are proceedings of a criminal nature before a court of law or a judicial tribunal. By no stretch of imagination it can be said that the Registrar is a court of law or a judicial tribunal while he acts under S.611(2) of the Act. The petitioner has no case that the learned Magistrate has convicted or punished him. What Art.20 prohibits is only a second punishment for the same offence.