ARUN KUMAR DAS Vs. STATE

JUDGEMENT

(1.) Short point raised in this revisional application is whether an offence punishable under section 630 of the Companies Act is a continuing one or not. Material facts which may be necessary for appreciation of the contention raised on behalf of the petitioner are that he was a Deputy Divisional Manager of Bharat Petroleum Corporation the opposite party No.2 herein, and he was allotted by the corporation flat in the ground floor of premises No.15, Rowland Road. The petitioner had retired from the service of the company on or about the 1st September 1984, but as he did not vacate the flat allotted to him, the said company had filed a complaint before a competent Magistrate some 1986 under section 630 of the Companies Act. The petitioner contends that the offence, if any, was committed and completed on or about the 1st September 1984, and, therefore, the learned Magistrate had committed an error by taking cognizance on the complaint filed in 1986, because the offence being punishable with fine only, the complaint should have been filed within six months from the date of its commission. This contention sought to be repelled on the ground that the offence in question is a continuing one and as such there was no question of taking cognizance after expiry of the period of limitation.

(2.) In order to determine whether an offence punishable under section 630 of the Companies Act, is a continuing one or not, it is necessary to bear in mind the distinctive feature of such an offence which has been explained by the Supreme Court in Deokaran's case AIR 1973 SC 908. Shelat, J. delivering judgment for the court had stated that continuing offence was one which was susceptible of continuance and was distinguish able from the one which was committed once and for all. It was further pointed out that the distinction between the two kinds of offence between an act or omission which constitute an offence once and for an act or omission which continued and, therefore, constitute a fresh offence every time or occasion on which it continued. Therefore, in order to decide whether an offence punishable under section 630 of the Companies Act is susceptible of continuance or not, it is imperative to look to the language of the section itself. The company wants to make out a case under section 630(1)(b) of the Companies Act which provides that ii any officer or employee of a company having any property of the company in his possession wrongfully withholds it etc. he shall on the complaint of the company or any other person specified therein be punishable with fine extending upto Rs. 1000. Clearly therefore the offence consists of wrongfully withholding a property of the company and necessarily the offence must continue so long as the property is so withheld. The same view has also been taken by Rajasthan High Court in Beguram vs. Jaipur Udyog Limited, (1987) of Com. Cases 744 though on a different consideration.

(3.) The learned Advocate for the petitioner has pointed out that the offence of non-filing of annual return or copy of balance sheet etc. with the Registrar under section 159 and section 220 respectively of the Companies Act are non-continuing offence and certain Bench decisions of this Court to that effect were cited. The learned Advocate for the petitioner has argued that for analogous reason the offence punishable under section 630 of the Companies Act, should also he held as a non-continuing offence. There is no merit in this contention as clearly the analogy does not apply. Both section 159 and 220 of the said Act provide, inter alia, that annual return and copy of balance sheet, etc. shall be filed within a prescribed date and thus the offence is committed and completed as Soon as the same are not filed within the prescribed date. On the other hand section 630(1) (b) of the said Act, as already pointed out, makes wrongful withholding of a property of the company an offence, necessarily implying that the offence continues as long as the property is so withheld. Neither section 159 nor section 220 of the Companies Act provide that withholding the annual return or the copy of the balance sheet constitute the offence punishable under section 162 of the same Act. It is because of this distinction in the language of the different sections pointed out above that the analogy sought to be drawn by the learned Advocate for the petitioner does not apply.