Sivandhi Adityan vs Additional Registrar of Companies

Janarthanam, J.—Ramachandran Chemicals Pvt. Ltd. (for short ""the company"") is a company incorporated under the Companies Act, 1956

(for short ""the Act""), having its registered office located at No. 42, Rajaji road, Madras-1. Sri Jahanbus Harmushaw Tarapore, Sri Narayanswamy

Srinivasan, Sri B. Sivanthi Adityan, Sri Narayanswamy Ramachandran, Sri K. R. Ramabhadran and Sri K. Ramachandran are the directors of the

said company.

Under rule 3A of the Companies (Acceptance of Deposits) Rules, 1975 (in short ""the Rules''), every company shall before April 30 of each

year, deposit or invest, as the case may be, a sum which shall not be less than 10 per cent. of the amount of its deposits maturing during the year

ending on March 31, next following in any one or more of the four methods of investments prescribed therein. The company was stated to have

committed defaults in complying with the provisions of rule 3A thereof in respect of deposits maturing during the years ending with March 31,

1979, 1980, 1981 and 1982. The directors who are, in terms of sub-section (30) of section 2 of the Act, officers of the company, were stated to

have committed such defaults knowingly and wilfully and thus rendered themselves liable to punishment under rule 11 for contravention of rule 3A

thereof.

A show-cause notice was stated to have been issued to the company and its directors bringing to their notice the contravention of the said rule.

No convincing reasons were stated to have been given either by the company or its directors for such contravention.

The company and its directors were stated to have not only accepted, renewed and held deposits in excess of the prescribed limits but also

failed to ensure repayment of such deposits within the time prescribed and thus contravened the provisions of sub-sections (1) and (4) punishable

under sub-sections (5) and (6) of section 58A of the Act.

The Additional registrar of Companies, having his office at ""Shastri Bhavan"", 26, Haddows Road, Madras-6, laid two complaints in C. C. Nos.

1291 and 1292 of 1983, on the file of the Additional Chief Metropolitan Magistrate (E.O. No. 1), Egmore, Madras, arraigning the company and

its directors as accused Nos. 1 to 7 for alleged violations of infractions of rule 3A punishable under rule 11 of the Rules (former complaint) and

sub-sections (1) and (4) punishable under sub-sections (5) and (6) of section 58A of the Act (latter complaint) alleging that the question of

limitation will never arise for consideration as the contraventions complained of are continuing offences.

It is represented at the Bar that all the accused excepting Sri B. Sivanthi Adityan (accused No. 4) admitted the offences and consequently they

were sentenced to fine in a specified amount.

Before ever the trial commenced, accused No. 4. Sri B. Sivanthi Adityan, came forward with the present actions to quash the criminal

proceedings initiated against him, invoking the inherent jurisdiction of this court u/s 482 of the Code of Criminal Procedure, 1973 (for short ""the

Code"").

Mr. V. Shanmugham, learned counsel appearing for the petitioner - accused No. 4, would press into service, in a bid to quash the criminal

proceedings the following two points for consideration :

(1) The prosecutions launched are barred by limitation; and

(2) No show-cause notice had been served upon the petitioner - accused No. 4 and, therefore, he could, by no stretch of imagination, be

construed as an ""officer in default"" in terms and tenor of section 5 of the Act.

Mr. K. Illias Ali, learned Additional Central Government Standing Counsel, would, however, repel those submissions.

The period of limitation for taking cognizance of a complaint had been provided for u/s 468 of the Code. The limitation prescribed therefore is

relatable to the quantum of sentence for the offences in respect of which prosecution had been launched. The period of limitation shall be six

months, if the offence is punishable with fine only; one year, if the offence is punishable with imprisonment for a term not exceeding one year and

three yeas, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Pertinent it is to note that no

period of limitation whatever had been prescribed as respects offences punishable with imprisonment exceeding three years.

Infractions or violations of sub-sections (1) and (4) are respectively punishable under sub-sections (6) and (5) of section 58A of the Act. The

punishment provided in the said sub-sections (5) and (6) is imprisonment which may extend to five years, i.e., exceeding three years. Therefore,

there can be nor bar of limitation whatever for taking cognizance of complaints involving those offences. As such, it cannot at all be stated that

taking cognizance of the complaint in C. C. No. 1292 of 1983, by the court below was beyond the period of limitation.

The infraction or violation of rule 3A is punishable under rule 11 of the Rules with fine which may extend to Rs. 500. For such an offence

punishable with fine the period of limitation prescribed under clause (a) of sub-section (2) of section 468 of the Code is only six months. The

complaint having been taken cognizance of on December 13, 1983, for the alleged violations during the years ending with March 31, 1979, 1980,

1981 and 1982, in the sense of not making deposits or investment as required thereof on or before April 30, of the respective yeas, that is, beyond

the period of six months, is clearly barred by limitation.

Learned Additional Central Government Standing Counsel would, however, contend that such a violation or contravention is a continuing

offence, in respect of which no question of limitation can arise for consideration.

Then the moot question that arises for consideration is whether such a violation is a continuing offence.

Useful reference may be made to certain precedents emerging from the apex court of this country to resolve the tangle posed in this case. In

State of Bihar Vs. Deokaran Nenshi and Another, . Their Lordships J. M. Shelat and H. R. Khanna JJ. explained the concept of a continuing

offence in paragraph 5, which is reflected as follows (at page 909) :

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 offence 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 non-compliance occurs and

recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an

offence once and for all and an act or omission which continues, and therefore constitutes a fresh offence every time or occasion on which it

continues. 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.

In Maya Rani Punj Vs. Commissioner of Income Tax, Delhi, , the year of assessment was 1961-62. The return was due by September 28,

1961. But the same was neither filed within time; nor was any extension asked for. The assessee filed the return on May 3, 1962, beyond more

than seven months of the due date. With effect from April 1, 1962, the Income Tax Act, 1961 (for short ""the 1961 Act"") had come into force. The

Income Tax Officer took proceedings u/s 271(1)(a) of the 1961 Act and imposed a penalty of Rs. 4,060 for failure to furnish the return within the

time on a finding that the assessee had not been prevented by any reasonable cause from complying with the statutory obligation to make the

return. The assessee challenged the imposition of penalty by preferring an appeal to the Appellate Assistant Commissioner who refused to interfere

and dismissed the appeal. On further appeal, the Appellate Tribunal held that penalty was leviable under the 1961 Act but the amount of penalty

had to be quantified according to the provisions of section 28 of the Indian Income Tax Act, 1922 (for short ""the 1922 Act""). Applying the

provisions of the 1922 Act, the Tribunal reduced the penalty to Rs. 400.

(a) At the instance of the Revenue the following question was referred to the High Court u/s 256(1) of the 1961 Act (at page 3320 :

Whether, on the facts and in the circumstances of the case, the Tribunal was in law competent to reduce the penalty levied u/s 271(1)(a) to a

figure lower than the sum equal to 2 per cent. of the tax for every month during which the default continued but not exceeding the aggregate of 50

per cent. of the tax ?

The High Court answered the reference in favour of the Revenue and against the assessee. The aggrieved assessee, therefore, agitated the matter

before the Supreme Court.

(b) In the backdrop of such a factual situation, the Supreme Court came to consider the question as to whether the default committed in filing the

return within the time stipulated for such filing has to be construed in law as a continuing default.

(c) In answering the question, the Supreme Court expressed thus (at pages 338, 340, 341) :

The distinctive nature of a continuing wrong is that the law that is violated makes the wrong-doer continuously liable for penalty. A wrong or

default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is

reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are

words in the statute concerned which make out that such was the intention of the Legislature .... In Words and Phrases, permanent edition, under

the head ""Continuing offence"", instances have been given which indicate that as long as the default continues, the offence is deemed to be repeated

and, therefore, it is taken as a continuing offence. As has been appropriately indicted in the Corpus Juris Secundum, volume 85, at page 1027,

accrual of penalty depends on the terms of the statute imposing it and in view of the language used in section 271(1)(a) of 1961 Act, the position is

beyond dispute that the Legislature intended to deem the non-filing of the return to be a continuing default - the wrong for which penalty is to be

visited, commences from the date of default and continues month after month until compliance is made and the default comes to an end. The rule of

de die in diem is applicable not on daily but on monthly basis ..... The imposition of penalty not confined to the first default but with reference to the

continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default

continued. Without sanction of law, no penalty is impossible with reference to the defaulting conduct. The position that penalty is impossible not

only for the first default but as long a the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of

the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law, he continues to be guilty of

the infraction and exposes himself to the penalty provided by law.

In the case of State of Bihar Vs. Deokaran Nenshi and Another, , the respondents were the owners of a stone quarry. They failed to furnish to

the Chief Inspector the annual returns for the year 1959 by January 21, 1960. On March 28, 1960, the Chief Inspector drew their attention to the

said failure and warned the respondents that if they failed to furnish the returns within two weeks from the date of the said letter, i.e., by April 11,

1960, proceedings would be instituted against them under the Act. On their failure to do so, despite the said warning, a complaint was filed in the

Court of the Magistrate, Dhanbad, on April 12, 1961.

(a) Section 66 of the Mines Act, 1952, provides that a person omitting to file any return, notice etc., in the prescribed form or manner or at or

within the prescribed time required by or under the Act to be made or furnished shall be punishable with fine which may extend to Rs. 1,000.

Section 79, however, lays down that no court shall take cognizance of any offence under this Act unless a complaint thereof has been made within

six months from the date on which the offence is alleged to have been committed or within six months of the date of which the alleged commission

of the offence came to the knowledge of the Inspector, whoever is later. The Explanation to the section provides that if the offence in question is a

continuing offence the period of limitation shall be computed with reference to every point of time during which the said offence continues. Under

regulation 3 of the Indian Metalliferous Mines Regulations, 1926, an owner, agent or manager of every mine is required to forward to the District

Magistrate and to the Chief Inspector the annual returns in respect of the preceding year in the forms prescribed therein and on or before January

21, in each year.

(b) One of the two questions agitated before the trial court, in the High Court and before the apex court was whether the complaint was barred by

limitation, it having been filed more than a year after the default, which occurred on January 21, 1960.

(c) In answering the said question the Supreme Court said in paragraph 9 thus (at page 910) :

Regulation 3 read with section 66 of the Mines act makes failure to furnish annual returns for the preceding year by January, 21 of the

succeeding year an offence. The language of regulation 3 clearly indicates that an owner, manager, etc., of a mine would be liable to the penalty if

he were to commit an infringement of the regulation and that infringement consists in the failure to furnish returns on or before January 21, of the

succeeding year. The infringement, therefore, occurs on January, 21 of the relevant year and is complete on the owner failing to furnish the annual

returns by that day. The regulation does not lay down that the owner, manager, etc., of the mine concerned would be guilty of an offence if he

continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of regulation 3 is complied with. In

other words, regulation 3 does not render a continued disobedience or non-compliance with it an offence. As in the case of construction of a wall

in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made, a default

occurs in furnishing the returns by the prescribed date. There is nothing in regulation 3 or in any other provision in the Act or the Regulations which

renders the continued non-compliance an offence until its requirement is carried out.

In the case on hand, the legislative intention expressed in rule 3A is not indicative of the infraction or violation of such a rule as a continuing

offence. To put it otherwise, infraction or violation contemplated therein is committed once and for all attracting penal consequences under the first

limb of rule 11 alone, in the sense of the same liable to be punished with fine, which may extend to Rs. 500. Once such an infraction or violation is

not a continuing offence, it goes without saying that the complaint, which had been taken cognizance of by the court below on December 13, 1983,

is clearly barred by time, as having been filed beyond the period of six months from the dates of the alleged violations, namely, March 31 of the

years 1979, 1980 and 1982, in the sense of not making deposits or investment as required thereof on or before April 30 of the respective years.

Sub-section (30) of section 2 of the Act defines ""officer"" by means of inclusive definition and it is as under;

In this Act, unless the context otherwise requires.

(30) ''officer'' includes any director, managing agent, secretaries and treasurers, manager, or secretary or any person in accordance with whose

directions or instructions the board of directors or any one or more of the directors is or are accustomed to act and also includes -

(a) where the managing agent or the secretaries and treasurers is or are a firm, any partner in the firm;

(b) where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manger of the body corporate but save

in section 477, 478, 539, 543, 545, 621, 625 and 633 does not include an auditor.

The meaning of ""officer who is in default"" is couched in section 5 (prior to amendments) of the Act, which runs as under :

Meaning of ''officer who is indefault''. - For the purpose of any provision in this Act which enacts that an officer of the company who is in

default shall be liable to any punishment, or penalty, whether by way of imprisonment, fine or otherwise, the expression ''officer who is in default''

means any officer of the company who is knowingly guilty of the default, non-compliance, failure, refusal or contravention mentioned in that

provision or who knowingly and wilfully authorises or permits such default, non-compliance, failure, refusal or contravention.

The combined effect of sub-section (30) of section 2 and section 5 is that all the directors of the company cannot at all the construed as

officers in default"", unless each of the directors is an ""officer in default"" within the meaning of section 5 of the Act.

Learned counsel for the petitioner would, however, contend that the petitioner-accused No. 4 cannot at all the construed as an ""officer in

default"" within the meaning of section 5 of the Act, inasmuch as a show-cause notice had not at all been served upon him before the prosecution

was launched against him. Significant it is to note here that the allegations in the complaint do reveal the issuance of the notice to the company and

all its directors and no convincing reply came forth from either the company or any of its directors. But the complaint is silent as to the date of

service of notice on the company and all its directors, inclusive of the petitioner-accused No. 4. In such a circumstance, learned counsel for the

petitioner asserted that no service of notice was there on him-accused No. 4.

Since service of notice is a crucial factor for determining the question as to whether the petitioner-accused No. 4 could be construed as an

officer-in-default""; this court directed learned Additional Central Government Standing Counsel to produce the file to verify the tenability or

otherwise of the vociferous contention raised by learned counsel for the petitioners. Accordingly a file had been produced before this court for

perusal. A perusal of the file reveals that show-cause notice had in fact been served not only on the company but also on all the directors of the

company, excepting the petitioner-accused No. 4, and the notice so sent to the petitioner-accused No. 4 had been returned as ""not found"".

Therefore, it is clear that there was no proper service of notice on the petitioner-accused No. 4 before the prosecution is launched against him.

The effect of non-service of notice before prosecution came to be considered in the decision in Thomas (V.M.) v. Registrar of Companies

[1980] 50 Comp Cas 247 by the Kerala High Court.

(a) In that case, prosecution was launched against the company, its managing director and another director. The company and its managing

director pleaded guilty, but the other director disputed his liability. The other director was also found guilty and convicted. He preferred a revision

to the High Court. The Kerala High Court in that case found that a notice was sent to the director by the Registrar of Companies but it was

returned unserved. Taking that fact into consideration, the Kerala High Court held that it cannot be said that in spite of the petitioner before it

having been cautioned in time, the default took place, and, therefore, he had knowingly and wilfully authorised or permitted the default or non-

compliance.

The view thus expressed by the Kerala High Court had been quoted with approval by Bhaskaran J. (as he then was) a learned judge of this

court in the case of Assistant Registrar of Companies v. Southern machinery Works Ltd. [1986] 59 Comp Cas 670. In that case, the Assistant

Registrar of Companies filed complaints against several companies and their directors u/s 162 and 220 of the Act for failure to file annual returns

and balance-sheets. Notice were issued to all the directors, which were served on them, but no reply was received from any of the directors.

Thereafter, the assistant Registrar launched prosecutions after giving the directors sufficient opportunity. The company and the directors contended

that prosecutions could not be launched against all the directors of or failure to comply with any provision of the Act but should be filed only

against the company and those directors who are in default as defined u/s 5 of the Act and since the complaint had mechanically stated that ""the

company and its directors are under statutory obligation to file the statutory returns and since they failed to file the returns, all of them are liable"",

the complaints were not maintainable and prosecutions could not be launched.

The learned judge, following the dictum of the Kerala High Court, as stated supra, expressed thus (at page 677) :

From this observation, conversely it follows, that if notice is served and if no reply is received, it must be held that that officer has knowingly

committed default.

So saying, the learned judge held that the complaint filed by the Assistant Registrar of Companies against the company and all its directors

treating them as ""officers in default"" is maintainable.

From the discussion as above, it goes without saying that the petitioner-accused No. 4 cannot at all be construed to the an ""officer in default

under the provisions of section 5 of the Act.

For the reasons as above, the prosecutions as launched against the petitioner-accused No. 4 deserve to be quashed.

In the result, both the petitions are allowed and the proceedings in C.C. Nos. 1291 and 1292 of 1983, on the file of the Additional Chief

Metropolitan Magistrate (E.O. No. 1), Egmore, Madras as against the petitioner-accused No. 4 shall stand quashed.