M/S.Subhikasha Trading v. The Deputy Registrar Of
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.08.2022 PRONOUNCED ON : 04.11.2022
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN and M.P.Nos.1 and 2 of 2013
1. M/s.Subhiksha Trading Services Limited, "Habib Complex", Cabin "A", Flat No.2, 2nd Floor, No.5, Durgabai Deshmukh Road, R.A.Puram, Chennai - 600 028.
2. R.Subramanian, Managing Director, M/s.Subhiksha Trading Services Limited, "Habib Complex", Cabin "A", Flat No.2, 2nd Floor, No.5, Durgabai Deshmukh Road, R.A.Puram, Chennai - 600 028.
Now at Shop 11, Ground Floor (Rear Side), No.15/1, Thambiah Road, West Mambalam, Chennai - 600 033.
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3. M.Rathinakumar, Secretary, M/s.Subhiksha Trading Services Limited, 7A, Rajaji Nagar, Pillayar Koil Street, Chennai- 600 041.
Now at:
G2-I-Block, Land Marvel Garden, Pillaiyar Koil Street, Rajaji Nagar, Thiruvanmiyur, Chennai - 600 041.
.. Petitioners/Accused Vs.
The Deputy Registrar of Companies, Shastri Bhavan, Chennai - 600 006.
.. Respondent/complainant PRAYER : This Criminal Original Petition is filed under Section 482 of Cr.P.C., to quash the complaint in E.O.C.C.No.283 of 2011 on the file of the learned Additional Chief Metropolitan Magistrate Court, (Economic Offences-II), Egmore, Chennai.
For Petitioners : Mr.R.Subramanian [P2] Party-in-person No appearance [for P1 & P3] For Respondents : Dr.D.Simon Central Govt. Standing Counsel Page No.2/10
ORDER
The Criminal Original Petition is filed to quash the complaint in E.O.C.C.No.283 of 2011 on the file of the learned Additional Chief Metropolitan Magistrate Court, (Economic Offences-II), Egmore, Chennai.
2. The petitioners have been accused of an alleged offences under Section 147(1) of the Companies Act. The allegations made in the complaint are briefly as follows:
(i) That the company, M/s.Subhiksha Trading Services Ltd., of which the petitioners are the Managing Director/Secretary has not complied with the provisions of Section 147(1) of the Companies Act, that the company has not kept the name board of the company with the address of its registered office on the outside of the registered office of the company. (ii)That a show cause notice dated 31.03.2011 was issued.
(iii) That replies received were not convincing. Hence the prosecution.
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(iv) That the Regional Director instructed the respondent herein to launch prosecution in and by a letter No.13(34)/2010 dated 28.03.2011.
3. The complaint has been taken on file by the learned Additional Chief Metropolitan Magistrate (Economic Offences-II), Egmore, Chennai.
4. The 2nd petitioner R.Subramanian, appeared in person and would contend that the alleged offence under Section 147(1) of the Companies Act, is not a continuing offence and since the complaint has been filed after the period of limitation under Section 468 (2) of the Cr.P.C., the learned Magistrate ought not to have taken cognizance.
5. Per contra, the learned Central Government Standing Counsel appearing on behalf of the respondent would contend that steps have been immediately taken to prosecute.
6. Heard both sides and perused the records.
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On perusal of the document, it is seen that the alleged offence was between 20.07.2009 to 30.10. 2009. Complaint was filed on 18.04.2011.
7. From the records, the company has not compiled with Section 147(1) of the Companies Act, 1956. The punishment prescribed therefor is only fine. Consequently, the limitation under Section 468 of Cr.P.C., is six months.
8. Regarding whether the offence under Section 147(1) of the Companies Act, is a continuing offence or not, in Teledata Technology Solutions Limited and others V The Deputy Registrar of Companies, Chennai reported in 2022 SCC OnLine Mad 102 dated 11.01.2022, the Court held as follows:
12. The expression "continuing offence" has not been defined in the Code of Criminal Procedure, 1973. However, the courts have explained the same in number of judgments. In the case of continuing offence, the ingredients of offence continues even after the offence takes place, whereas in an instantaneous offence, the offence took place once and for all, in such case, there is no continuance of offence. For the offence arising out of a failure to comply with a statutory provision, which is involves penalty, the liability continues until the default is complied with complied with and on every moment of such non compliance occurs and recurs, there is an offence committed and it is a continuing offence until the default is complied with.
13. In Udai Shankar Awasthi v. State of U.P., (2013) 2 SCC 435, the Honourable Supreme Court has explained the expression "continuing offence" as under:- "
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25. Continuing offence means 'type of crime which is committed over a span of time'. As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. 'A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse'.
26. In State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890 wherein the Court while dealing with the case of continuance of an offence has held as under :
5. A ''continuing offence'' is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or noncompliance occurs and reoccurs, there is the offence committed. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." 29.
Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue."
14. The Companies Act, 1956, provides different kinds of punishments for various offences committed by the companies. For certain offences, took place once and for all, the Act provide only maximum punishment. For some kind of offences, for example, under Section 159, 160,161 and 220 of the Act, relating to non filing of returns and some other documents before the Registrar of Companies, the punishment is provided under Section 162 of the Act, which reads as follows:- "162.
(1) If a company fails to comply with any of the provisions contained in section 159, 160 or 161, the company and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during Page No.6/10
which the default continues. There is a clear distinction between the punishment. The penalty of payment of fine for every day till the default continues, indicates that, the offence continues until the default is complied with, which makes the offence a continuous offence.
15. In cases where the offence is a continuing offence, section 472 of Cr.P.C. saves limitation and a fresh period of limitation shall begin to run every moment of the time during which the offence continues.
9. As per Section 147(1) of Companies Act, Every company shall: a) shall paint or affix its name and the address of its registered office and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, in letters easily legible and if the characters employed therefor are not those of the language, or of one of the languages in general use in that locality, also in the characters of that language or of one of those languages; b) shall have its name engraven in legible characters or its seal; and c) shall have its name and address of its registered office mentioned in legible characters in all its business letters, in all its bills heads and letter paper, and in all its notices and other official publications and also have its name so mentioned in all bills of exchange, hundies, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcel, invoices, receipts and letters of credit of the company.
10. Since the offence is punishable with fine, it is not a continuing offence and hence by operation of law of limitation prescribed under Section 468 of Cr.P.C., comes into operation, as stated supra. In the present case, commission of alleged offence took place between 20.07.2009 and Page No.7/10
30.10.2009, whereas the complaint was instituted only after six months i.e., on 18.04.2011 Since the complaint was instituted beyond the period of limitation, the same cannot be permitted to continue.
11. The offence under Section 147(1) of the Companies Act is punishable only with fine. By applying the above principle, the period of limitation may be fixed only with six months and in the instant case, for the alleged offence, the punishment prescribed is only fine of Rs. 5000. Since it is not a continuing offence, it is barred by limitation as explained in the above said decision.
12. Therefore, the Criminal Original Petition is allowed and the complaint in E.O.C.C.No.283 of 2011 on the file of the learned Additional Chief Metropolitan Magistrate Court, (Economic Offences-II), Egmore, Chennai, stands quashed. Consequently, connected M.P's are closed. 04.11.2022 Internet : Yes Index : Yes/No ars To Page No.8/10
The Deputy Registrar of Companies, Shastri Bhavan, Chennai - 600 006.
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RMT.TEEKAA RAMAN,J., ars order in Crl.O.P.No.9156 of 2013 and M.P.Nos.1 and 2 of 2013 04.11.2022 Page No.10/10