KISHAN PRASAD PALAYPU Vs. REGISTRAR OF COMPANIES HYDRABAD

JUDGEMENT

(1.) Per Hon'ble Sri Justice A.Gopal Reddy) The question referred to this Bench is a simple one, "whether failure to comply with the statutory requirement of Section 220 of the Companies Act, 1956 (for short "the Act") can be said to be a continuing offence or not" The facts giving rise to reference may be stated in nutshell as follows: The petitioner is a Director of M/s.Palaypu Financial and Investment Services Limited (A1). He and another Director were prosecuted along with the Company for the offence under Section 220 of the Act for their failure to file the return, namely, the audited Balance Sheet and Profit and Loss Account required to be laid before the Annual General Meeting i.e. 30-09-1999 as required under Section 210 of the Act within six months before the close of the financial year and three copies of the Balance Sheet etc. so laid shall be filed with the Registrar of companies (hereinafter referred as "complainant") on or before 30-10-1999 and in case the Balance sheet etc. was not laid before the Annual General Meeting; three copies thereof shall be filed with the complainant on or before which the Annual General Meeting should have been held as per the said Act. Accused No.2 (Petitioner) and Accused No.3 being the officers of the Company have failed to comply the above statutory requirements of Section 220 of the Act, in spite of issuance of show cause notice by the complainant in that behalf and therefore accused Nos.2 and 3 are the officers in default: within the meaning of Section 5 of the Act. The default commenced on 31-10-1999 and it is a continuing offence within the meaning of Section 472 Cr.P.C. The learned Magistrate took cognizance of the offence filed by the complainant in C.C.No.387 of 2002 and issued process. Therefore, the petitioner moved this Court under Section 482 Cr.P.C. for quashing the proceedings contending that he conducted the Annual General Meeting by 30-09-1996; 30-09- 1997; 30-09-1998; 30-09-1999; 30-09-2000; 30-09-2001 for financial year ending 31-03-1996; 31-03-1997; 31-03-1998; 31-03-1999; 31-03-2000 and 31-03-2001 and the limitation period expired by 31-03-197 ; 31-03-1998; 31-03-1999; 31-03- 2000; 31-03-2001 and 31-03-2002 respectively. The above complaints, which have been filed in September, 2002 are, therefore, barred by limitation. been expressed in relation thereto by the Apex Court, both the counsel are unable to place before the Court any such decision. The question whether the offences of this nature would fall within the meaning of "continuing offence" or not would be arising quite often in several matters, it would be appropriate to refer the matter to an appropriate Division Bench to decide the question.

(2.) The reference of the aforesaid question to this Bench was necessitated on account of seeming conflict between the views expressed by two learned single Judges of this Court in Crl.P.No.5518 of 2002 and Crl.P.No.5538 of 2002 on one hand and the view expressed in KREBA BIOCHEMICALS LIMITED v. REGISTRAR OF COMPANIES, HYD.2002(2) AI.D(Crl.) 227 (AP); G.VIJAYALAKSHMI v. SECURITIES AND EXCHANGE BOARD OF INDIA 2000(1)ALT(Crl.) 549 (AP), the Division Bench of Calcutta in NATIONAL COTTON MILLS v. ASSISTANT REGISTRAR OF COMPANIES (Cal.) 1984 (56) Company Cases 222 and single Judge judgment of the Karnataka High Court in CHANDRA SPINNING & WEAVING MILLS (P) LIMITED v. REGISTRAR OF COMPANIES1990 (69) Company Cases I I 7 on the other. We may vivify the discussion by quoting the provisions of direct concerned in this case. They are: Sections 162 and 220 of the Act and Section 472 of Cr.P.C., which read thus : Section 162:

(3.) A reading of Section 162 of the Act makes it clear that if a company fails to comply with any of the provisions contained in sections 159, 160 or 161, which enjoining of filing annual return and other documents within 60 days from the date on which the Annual General Meeting is held, the company, and every officer of the company who is in default, shall be punishable with fine which may extent to fifty rupees for every day during which the default continues.