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Judgment
Mahesh Chandra Sharma, J.—This criminal appeal has been filed by the appellant-Union of India, through Registrar of Companies. Ministry of Finance and Company Affairs, against the judgment of acquittal dated 9-8-2002 passed by learned Special Judicial Magistrate (Economic Offences), Jaipur City. (Hereinafter to be referred in short ''the learned trial Court'') Jaipur in case No. 137/2002, whereby it acquitted the accused respondents for the offence u/s 220(3) of the Companies Act.
Brief facts of the case are that the Assistant Registrar, Companies, Rajasthan, Jaipur filed a complaint in the Court of Special Judicial Magistrate (Economic Offence) Rajasthan, Jaipur u/s 220(3) of the Companies Act, 1956 to the effect that according to Section 210 and its sub-sections the Company was required to place the balance sheet and profit and loss account for the financial year 1999-2000 in its annual general meeting to be held on 31-12-2000 and further to submit the balance-sheet and profit and loss account within 30 days of the holding of the meeting in terms of provisions of Section 220(1) of the Companies Act. However, the accused Company failed to submit the balance-sheet and profit and loss account and even after the expiry of long period up to the date of filing of the complaint, i.e., 12-2-2002, the accused Company failed to submit the balance-sheet and profit and loss account in accordance with law before the Registrar of Companies. Although default notices were issued and served upon the accused persons but still they failed to submit the return and thus, committed default in terms of the provisions of Section 220(3) of the Act and thus, made themselves liable for prosecution and punishment under the provisions of Section 220(3) of the Act. It was also averred that pending decision upon the complaint, the accused persons be directed to submit annual return in accordance with the provisions of Sections 614A and 611(2) of the Act. Cost of the proceedings were also demanded along with the request that the offence made out against the accused persons be treated as an offence continuous in nature.
On the basis of this complaint the learned trial Court took cognizance against the accused respondents for the offence u/s 220(3) of the Companies Act, 1956. Thereafter, the substance of the offence was read over to them. They denied the charges, pleaded not guilty and claimed to be tried in the matter.
From the side of complainant statement of P.W.1 Shiv Prakash Rawat was recorded.
Thereafter, the statements of the accused respondents u/s 313, Cr.P.C. were recorded.
After conclusion of the trial, the learned trial Court vide its judgment dated 9-9-2002 acquitted the accused-respondents from the aforesaid offence.
Aggrieved with the impugned judgment of acquittal dated 9-8-2002 passed by learned trial Court, the appellant Union of India has preferred the instant appeal.
In this appeal Mr. K.K. Sharma, Addl. Solicitor General for Union of India submits that the learned trial Court completely misconstrued the statement recorded by the departmental representative. The accused respondents also failed to submit the balance-sheet and profit and loss account, as the trial Court found the complaint within limitation. The learned trial Court misread the statement of Mr. Rawat.
He further submits that the offence committed by the accused respondents is a continuous offence which is not barred by provisions of Section 468, Cr.P.C. Thus, the complainant rightly filed the complaint against the accused persons for the offence u/s 220(3) of the Companies Act, 1956.
He has also drawn attention of the Court towards certain judgments:
A. Sugga Engineering Works (P.) Ltd. and others (Cr. M. (M) Nos. 576 And 577 Of 1987) Vs. State and another, wherein it has been held as under:
Offence-Limitation for filing complaint.--Failure to file return and balance-sheet and profit and loss account of company within prescribed time-continuing offences--Fresh period of limitation begins to run at every moment while offence continues/Complaint filed beyond period of six months after expiry of prescribed time not barred by limitation--Companies Act, 1956, Sections 159, 162, 220--Criminal Procedure Code, 1973 Sections 468, 472.
B. Luxmi Printing Works Ltd. and Others Vs. Assistant Registrar of Companies, whereby it has been held as under:
Company-Offence.--Failure to file annual return and other documents within prescribed period - is continuing offence - Limitation for filing complaint - Governed in Section 472 of Criminal Procedure Code - Companies Act, 1956. Sections 162(1), 220(3) - Code of Criminal Procedure, 1963, Section 472.
C. State of Bihar Vs. Deokaran Nenshi and Another, Hon''ble Apex Court in para 5 at page 909 has defined continuing offence as under:
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 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 offence is between an act or omission which constitutes an offence once and for all and an act or omission which continues and thereafter 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.
He further urged to the Court that the learned trial Court has wrongly acquitted the accused respondents on the ground that P.W.1 Shiv Prakash Rawat is not an authorized person, as the complainant Bhoolan Singh was fully authorized and empowered to file the complaint. After filing of the complaint, statement of P.W.1 Shiv Prakash Rawat under Sections 200 and 202, Cr.PC. was recorded in which he stated that he is working in the office of RoC, Jaipur on the post of Sr. LDC and also look after the work of legal cell. This witness in his statement has specifically stated that it is not necessary to examine the complainant Mr. Bhoolan Singh, who has filed the complaint.
He has also drawn attention of the Court towards Section 200 of the Code of Criminal Procedure, which runs as under:
200 Examination of complainant.--A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and witnesses:
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192;
Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complaint and the witnesses, the latter Magistrate need not re-examine them.
Postponment of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made:
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session: or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any), have been examined on oath u/s 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by the Code on an officer in charge of a police station except the power to arrest without warrant.
From the bare perusal of the aforesaid provision, it is clear that there is no need of complainant to appear and record his statement. From the aforesaid statements it is clear that there is sufficient evidence available on record that the accused respondents have committed the offence punishable u/s 220(3) of the Companies Act.
Per contra Mr. Sunil Joshi, learned Counsel for the accused respondents submit that the learned trial Court has rightly passed the impugned judgment and the complaint filed by the complainant is barred by Section 468 Cr.P.C. Neither the prosecution has placed on record the letter of authorization of Mr. Bhoolan Singh to file the complaint nor complainant got his statement recorded providing chance to the other party to cross-examination. No application for exemption of presence of appearance was filed. The provisions of Sections 200 and 203 Cr.P.C. have since not been followed, as the complaint is barred by limitation. Neither list of the witnesses have been submitted nor record of the case has been brought, nor any personal knowledge has been attributed.
I have heard learned Counsel for both the parties and carefully gone through the impugned material available on record including the judgments cited by the learned Counsel for the Union of India.
A bare perusal and scrutiny of impugned judgment dated 9-8-2002 passed by trial Court it is clear that the learned trial Court in the impugned judgment has decided two points; firstly, that the complaint has been filed by the authorized person u/s 621 of the Companies Act, 1956 and secondly, that offence u/s 220(3) of the Companies Act is a continuous offence and is not hit by provisions of Section 468 Cr.P.C. but the trial Court while passing the impugned judgment of acquittal has held that PW-1 Shiv Prakash Rawat is not an authorized person. The statement of complainant Bhoolan Singh was not recorded because he has not been submitted as a witness by the prosecution but a bare perusal of Section 200 Cr.P.C. would clearly reveal that there is no need of the complainant to appear before the Court if any person authorized by him appears on his behalf.
The ends of justice would meet if a fine amounting to Rs. 5,000 is imposed upon the accused respondents so as to fulfil the compliance of provisions of Section 220(3) of the Companies Act, 1956.
Accordingly, the criminal appeal filed by the appellant Union of India is allowed and the impugned judgment of acquittal dated 9-8-2002 passed by learned Special Judicial Magistrate, (Economic Offence) Jaipur City, Jaipur in case No. 137/2002, is quashed and set aside and a fine amounting to Rs. 5,000 is imposed upon the accused respondents for committing the offence punishable u/s 220(3) of the Companies Act, 1956. The accused respondents shall deposit the amount of fine in the Court of learned Special Judicial Magistrate, (Economic Offences), Jaipur City, Jaipur within two months from the date of receipt a certified copy of this judgment. If the accused respondents fail to pay the amount of fine within the stipulated time then proceedings against the accused respondents under the provisions of Section 421 Cr.P.C. shall be taken.