Assistant Registrar of Companies vs Premier Synthetics Pvt. Ltd. and others

R. Balasubramanian, J.—All these revisions are direct against the common order dated October 18, 1985, passed by the Additional Chief

Metropolitan Magistrate (Economic Offices-I), Madras. The revision petitioner in all these cases is the Assistant Registrar of Companies, Tamil

Nadu, and the respondents in each case are different persons. However, in view of the common point involved in all these cases, I have decided to

dispose of all the revisions together by way of a common order.

The revision petitioner, who is hereinafter referred to as the complainant in this order, had filed 32 complaints against various companies alleging

that some of them have violate section 159 of the Companies Act and some of them have violated section 220 of the Companies Act; both

offences are punishable u/s 162 of the Companies Act. It is not in dispute that all the complaints have been filed after the expiry of six months

prescribed u/s 468(2)(a) of the Code of Criminal Procedure, 1973. Admittedly, if the violations are found to be true, the only fine can be imposed

as sentence. On his basis the learned Magistrate who took the complaints on file had returned them to the complainant stating that all the

complaints have been filed after a period of six moths from the date on which the offence was committed and so they are all barred by limitation.

To this return the complainant through his counsel had made an endorsement that since the offence is a continuing one, the law of limitation is not

attracted. However, the learned Magistrate thought it otherwise and dismissed the complaints as barred by limitation even without numbering them.

It is these orders that are challenged in these revisions.

All these cases are pending from the year 1986 onwards and there are a number of accused in each case. Service is not completed in all aspects

in these cases. However, on going through the records, I find that since that order is one of dismissal u/s 203 of the Code of Criminal Procedure,

1973, there is no need to order notice to any other accused or hear them. In other words, unless the court takes the case on file and issues process

to the accused, there is no need to hear them at a stage earlier to that. In this case, admittedly, the complaint is not yet taken on file and no process

has been issued. In such circumstances, the question whether notice should go to the accused or not, when the aggrieved complainant takes the

case further in revision is a concluded one.

There are more than one judgment of this court holding that in such circumstances in a case of dismissal of the complaint u/s 203 of the Code of

Criminal Procedure, 1973, the accused is not entitled to notice. To that effect, there are judgments, namely, (1) S. Thiyagarajan v. Ayyamperumal

[1983] LW C. 212; (2) Chandra Deo Singh Vs. Prokash Chandra Bose and Another, ; (3) Fella Pandi alias Maruthian Thevar v. Annathai Ammal

[1975] LWC. 162; (4) Jalaudeen v. Syed Ibrahim [1978] LW C. 178.

In view of this settled position of law, as evidenced by a catena of decisions, as referred to above, I thought it fit to dispense with notice to the

respondents in the criminal revision petition and on my direction counsel for the revision petitioner filed an affidavit supported by a petition to

dispense with notice to the respondents in these cases. This petition is brought up before me today at an unnumbered stage. The petition is

ordered. Notice to all the respondents dispensed with and registry is directed to number the criminal miscellaneous petitions and put up along with

the records.

In these cases under consideration, some of the complaints relate to violation of section 159 of the Companies Act and some of the cases relate

to violation of section 220 of the Companies Act. The violation u/s 220 of the Companies Act is made punishable in section 162 of the Companies

Act. The violation of section 159 of the Companies Act is also made punishable u/s 162 of the Companies Act. The view of the learned Magistrate

that the offences under sections 159 and 220 of the Companies Act, are not continuing offences and once an offence is done it is completed for all

practicable purposes on that day itself, is opposed to at least three rulings of this court. There are other judgments of various other High Courts,

some holding that the offences under sections 159 and 220 of the Companies Act are continuing offences and some holding the contra view.

However, in view of the settled position of law rendered by our High Court, I am not referring to any of the judgments of the other High Courts to

decide that question. The question whether the offences referred to above are continuing offences or not is the subject-matter of three decisions

and they are as follows :

Kalaimagal Corporation Ltd., In re [1987] LW C 501; Dhanalakshmi Chemical Industries Pvt. Ltd., In re [1988] LW C 7417 .

The first two judgments have been rendered by Justice Mrs. Padmini Jesudurai J. and the last one was rendered by Justice Mr. T.S.

Arunachalam J. (as he then was). Uniformly all the judgments hold that the offences complained of in these complaints are continuing offences and,

therefore, the period of limitation prescribed in law is not attracted. In view of the settled position of law, I have no hesitation in setting aside the

orders impugned in each of the revision cases and remand the matter back to the trial court for further action in accordance with law.

Though initially notices have been ordered in all the revision cases to the respective respondents, yet in view of the decided position of law that

no notice need be sent to the accused, I am dispensing with notice today view separate order. I also feel that no prejudice will be caused to any of

the respondents because of the judgments holding that the offences complained of are continuing offences.

All these revisions are, therefore, allowed. The complaints are remitted back to the learned trial Magistrate with a direction to take back one of

them on file and issue process of the accused. It is open to the accused to take all defences available to them in law in defending the proceedings.