GHANSHYAM CHATURBHUJ Vs. INDUSTRIAL CERAMICS P LIMITED

JUDGEMENT

(1.) THE petitioner whose complaint against the respondents for an offence under section 113 of the Companies Act, 1956 (hereinafter referred to as "the Act"), for failure to issue to him share certificates had been dismissed by the Additional Chief Metropolitan Magistrate (E. O. I.), Egmore, Madras, under section 203, Criminal Procedure Code, has preferred this revision, challenging the above order of dismissal. THE facts briefly are : THE petitioner filed a complaint under section 200, Criminal procedure Code, before the above court against the respondents, for an offence under section 113 (2) read with section 621 of the Act on the allegation that he is the holder of 466 equity shares, 236 preference shares and 2069 redeemable preference shares, that share certificates for the above shares have not been issued to him even though the ordinary and preference shares had been transferred to him even on December 2, 1963, and the redeemable shares were allotted to him on December 13, 1963. Despite several letters requesting the respondents to issue certificates, the respondents, while admitting the fact that the petitioner was the owner of the above shares, expressed inability to issue the necessary certificates due to lack of funds to incur expenses for printing the share certificates. This was in violation of section 113 of the act and since the offence was a continuing offence, the petitioner preferred the above complaint. THE first respondent is the company and respondents Nos. 2 to 5 are the directors.

(2.) THE learned Magistrate dismissed the above complaint under section 203, Criminal Procedure Code, on the following grounds : (i) that an offence under section 113 of the Act is not a continuing offence and the complaint, therefore, was barred by limitation under section 468, Criminal Procedure Code. (ii) that since the offence is not a continuing offence, respondents Nos. 3 to 5 who are the directors only for the last three years, could not be held liable for an offence committed 13 years earlier and the second respondent, who was the managing director, has sent an explanation that the share certificates could not be printed due to lack of funds. THE learned Magistrate also placed reliance on certain decisions. Thiru Prakash Gokulaney, learned counsel for the petitioner, contended that the offence under section 113 (2) of the Act is a continuing offence, that the complaint is saved by section 472, Criminal procedure Code, and that, therefore, both the findings of the lower court are untenable. THE decisions relied on by the learned Magistrate are no longer good law.