HIGH COURT OF ORISSA
Siddhartha Sen
v/s.
Registrar of Companies
CRIMINAL MISC. CASE NOS. 2510, 2883 TO 2887, 2894
TO 2899, 2901 TO 2904 AND 2910 TO 2913 OF 2003
MARCH 27, 2009
JUDGMENT
1. The above noted batch of twenty Criminal Misc. Cases have been filed by the petitioners seeking to challenge the registration of 2(C)CC Cases Nos. 366 to 385 of 2001 before the court of the learned A.C.J.M. (Spl), Cuttack under sections 159, 162 and 220(3) of the Companies Act, 1956 and also seeks to challenge the consequential summons issued to the petitioners apart from seeking to challenge the order dated September 25, 2001, taking cognisance in the aforesaid cases.
2. Mr. Bijay Kumar Mahanty, the learned senior advocate appearing for the petitioners contended that filing of the aforesaid complaint cases and the order dated September 25, 2001, taking cognisance against the petitioners is hopelessly barred by limitation. In the present case, complaints have been lodged for infraction of sections 159, 162 and 220 of the Companies Act, 1956. Whereas section 159 mandates filing of annual return within 60 days from the day on which annual general body meeting was held, section 162 stipulates penalty for non-compliance of the requirement of section 159 with fine which may extend to fifty rupees for everyday during which the default continues. Section 220 requires filing of balance-sheet as well as profit and loss account within thirty days from the date on which the balance-sheet and the profit and loss account were laid before the annual general body meeting and in default, prescribed for a penalty as contemplated under section 162 of the Companies Act, i.e., fine at the rate of Rs.50 per each day of default. It is further submitted that since the offences complained of contemplated levy of fine only, under section 468(2) of the Code of Criminal Procedure, 1973, the period of limitation/bar to take cognisance stipulates that after lapse of the period of limitation stipulated therein is six months since the offences are punishable with fine only. According to the petitioners, the complaints having been lodged much after the period of limitation, the learned A.C.J.M. could not have taken cognisance of the offences alleged. In this respect, reliance was placed on a judgment of this court in the case of Nalco v. Registrar of Companies [2003] 96 CLT 592.
3. Further, on the proposition of failure to file return under section 159 is a non-continuous offence and the cognisance thereof should have been taken within six months from the date of commission of offence. In this respect, reliance was placed on a decision reported in the case of Pravin Jha v. State of U.P. [2001] 106 Comp. Cas. 554/30 SCL 387 (All). Relying on the above, it was stated that the complaint was filed by the Registrar of Companies after more than 11 years whereas the statutory period was within six months. Therefore, the complaint by the opposite party-Registrar against the present petitioner is hopelessly barred by limitation.
4. Reliance was placed by the petitioners on a judgment of the apex court in the case of CWT v. Suresh Seth [1981] 129 ITR 328/6 Taxman 35, wherein the failure to file a return on the due date was held to be “non-continuing wrong”. Non-filing of return under the Wealth-tax Act, 1957, was held to be an Act of non-continuous wrong giving rise to a “single default” and to a single penalty and the default, if any, is committed on the last date allowed to file the return. Such default cannot be held to be one committed every month thereafter. The provision for computing penalty on the basis of delay in every month indicate “only the multiplier” to be adopted in determining the quantum of penalty and do not have the effect of making the default in question a continuing one.
5. Learned counsel for the petitioners has submitted a chart showing the date on which the annual return/balance-sheet were filed before the Registrar of Companies as well as the date on which the period of limitation expires and the date when the complaint was filed in different cases as well as the date when the cognisance was taken. The said chart is quoted below for convenience :
