Ramnugger Cane and Sugar Co. Ltd. and Others vs Asisatant Registrar of Companies

A.M. Bhattacharjee, J.—The only question involved in these three revisional applications is whether the offence for which the impugned presecutions have been launched against the petitioners under Rule 11 of the Companies (Acceptance of Deposit) Rules, 1975 for the contravention of Rule 10 thereof, framed u/s 58A read with Section 542 of the Companies Act, 1956, are continuing offences within the emaning of the aforesaid Rule 11 and Section 472 of the Code of Criminal Procedure. If the answer is in the affirmative, the prosecutions are not barred by limitation and the Rules are to be discharged, that being the only ground urged in support of the Rules. But if the answer is in the negative, the prosecutions are undisputedly barred by limitation and the Rules are to be made absolute. Rule 10 of the Companies (Acceptance of Deposit) Rules. 1975 provides that "every Company to which these Rules apply shall on or before the 30th day of June of every year, file with the Registrar, a return in the Form annexed to these Rules". Rule 11, which is the omnibus penal provision for the contravention of any provision of these Rules, and not merely of Rule 10, provides that "if a Company or any other person contravenes any provision of these Rules for which no punishment is provided in the Act, the Company and every officer in default, or such other person, shall be punishable with fine which may extend to five hundred rupees and where the contravention is a continuing one, with a further fine which may extend to fifty rupees for every day after the first during which the contravention continues". There is nothing in Rule 11 to indicate as to contravention of which provision of the Rules is to be treated as continuing contravention to attract the imposition of daily penalty during the continuation of the contravention. The Rule on the contrary indicates that a contravention of any of these Rule may only be an offence complete once for all punishable with fine extending to five hundred rupees and that only when any contravention of any of these Rules is a continuing one" in nature that the offence would also be continuing offence to be purmissible with the further imposition of.daily fine. The question, therefore, is whether contravention of Rule 10 would amount to a continuing offence.

Anything, whether a commission or an omission, is an offence if that is punishable under any law for the time being in force. That is how the expression "offence" has been defined in the General Clauses Act, the Penal Code as well as in the Code of Criminal Procedure. Therefore, when the relevant law not only penalises the omission or the default, but also provides that the penal liability would continue till the omission or the default would continue, the omission or default so made punishable would be a continuing offence. We have had the occasion to advert to this question in some details in Luxmi Printing Works Ltd. v. Assistant Registrar of Companies, Criminal Revisions No. 844 and No. 845 of 1984 disposed of to day - (subsequently reported Luxmi Printing Works Ltd. and Others Vs. Assistant Registrar of Companies, where we have considered the point both on principle as well as on the authorities of the two decisions of the Supreme Court in State of Bihar Vs. Deokaran Nenshi and Another, and in Bhagirath Kanoria ( AIR 1964 SC 1688).

In Deokaran Nanshi (supra, at 909, paragraph 5), the Supreme Court has ruled that "continuing offence" "is one of these offences which arises out of a failure to obey or comply the liability for which continues until the rule or its requirement is observed". And the Supreme Court accordingly held the offence of failure to submit return within the period prescribed under the Mines Act, 1952 and the Regulation made thereunder, not to be a continuing offence (supra, at 910, paragraph 9) as the relevant law "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 return or that the offence continues until the requirement of the Regulation is complied with". In Bhagirath Kanoria (supra, at 1692, paragraph 18), it has been pointed out that even though belated compliance may not absolve the offender of the initial guilt, it would snap the recurrence when not only the non-compliance, but also its continuation is an offence.

In Luxmi Printing Works (supra), we have, accordingly held that non-submission of return and other documents as required u/s 159, 1 60, 161 and 220 of the Companies Act is a continuing offence as the relevant penal provisions in Section 162(1) make it clear that the Legislature has not only made the default in submission of those documents within the prescribed period punishable as "offence", but has also made the penal liability for such default to continue until the default is made good. As already noted, absence of any such -provision in the Mines Act, 1952 and the Regulation made thereunder led the Supreme Court in Deokaran Nanshi (supra) to hold the offence of non-submission of return within the period prescribed not to be a continuing offence. According to the ratio in Deokaran Nanshi (supra, at 909, paragraph 5), three elements must concur before an offence can be held to be a continuing one (a) contravention or non-compliance with the relevant provisions of law, (b) provision for penalty for such contravention or non-compliance, and (c) liability for such punishment to continue until the provisions of law are complied with.

It must be noted that it is not the liability for continued punishment in the shape of daily fine or otherwise'' that is the sine qua non for a continuing offence, but that the continuation of the liability for punishment that makes it so. An offence for "wrongful restraint" or "wrongful confinement" for example, has not been made punishable with any continued punishment. But still it is a "continuing offence" as the liability for the punishment would continue untij the restraint or confinement is removed. But a provision for continued punishment until the default is removed may be indicative of the fact that the Legislature" treats the offence to be "continuing", even though it may notvbe so intrinsically. As we have indicated in Luxmi Printing Works (supra), non-submission of return within, the prescribed period would ordinarily be complete with the expiry of the period, as held by the Supreme Court in Deokaran Nanshi (supra). But still we have had to hold the same to be a "continuing offence" as the Legislature in Section 162(1) of the Companies Act has indicated, by imposing daily fine till the returns are filed, that the liability for the punishment would continue until the default is removed and the offence would thus continue until removal.

We have already extracted the relevant provisions of Rule 11, which provides for penalty, not for contravention of Rule 10 alone, but for contravention of any and every provision of the Rules and Rule 11 simply declares that while all contraventions are punishable with fine extending to five hundred rupees, if any such "contravention is a continuing one", a further daily fine extending to rupees fifty is to be imposed "during which the contravention continue. The Supreme Court decision in Deokaran Nanshi (supra) is a clear authority for the proposition that non-submission of return within the period prescribed is not a continuing offence, unless the relevant law makes it so by providing that the liability for punishment would continue until the return is filed. And the later decision in Bhagirath Kanoria (supra) has also treated (at 1694, paragraph 18) the decision in Deokaran Nanshi (supra) as a good authority for this view. That being so, as there is nothing to indicate either in the provisions of Rule 10 or Rule 11 of Section 58A of the Companies Act, that the liability for the punishment for non-submission of return within the period prescribed would also arise and continue on and for each day even after the period prescribed, until the return is filed, an offence for the contravention of Rule 10 cannot be treated as a "continuing offence" within the meaning of Section 472 of the Code of Criminal Procedure or to be a "continuing contravention" within the meaning of Rule 11 of the Companies (Acceptance of Deposits) Rules, 1975.

We would accordingly allow the revisional applications and quash the impugned prosecutions and make the rules absolute. The petitioners are to be released from bail bonds, if any.

A.K. Nandi, J.

I agree.