IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.29916 of 2007 1. Kanhaiya Lal Darak, son of late Sita Ram Darak, Resident of 111 Bajaj Bhawan, Nariman Point, Mumbai, Maharashtra 2. Laxmikant Tebriwal, son of late Ram Chandra Tebriwal, Resident of 216, A.J.C. Bose, Road, Kolkata, W.B. 3. Bimal Kumar Nopany, son of late Mohan Lal Nopany, Resident of 12th Govt. Place, East Kolkata, W.B. 4. Mahesh Prasad Dhandhania, son of late Badri Vishal Dhandhania, resident of 12th Govt. Place, East Kolkata, W.B. .. Petitioners Versus 1. The State of Bihar 2. The Registrar of Companies, Bihar and Jharkhand, Patna, .. Opposite Parties **** /4/ 07.11.2008 Heard the counsel for the petitioners and the counsel appearing for the Registrar of Companies, Bihar and Jharkhand, Patna. 2. Petitioners are the Directors of the Company, M/S Eastern Sugar & Industries Limited, which is a public limited company under the Companies Act, 1956. Complaint Case No. 877 C of 2006 was filed by the Union of India through the 2 Registrar of Companies, Bihar and Jharkhand, Patna, against the Company as well as it‟s Directors for commission of offence under Section 162(1) of the Companies Act (hereinafter referred to as, „the Act‟). In the complaint petition it was alleged that according to the provisions of Section 159 of the Act, the Company and it‟s Directors are under the statutory obligation to file with the Registrar of Companies, Bihar and Jharkhand, Patna, the annual return in the prescribed form duly placed in the Annul general meeting of the Company within thirty days of such meeting. The Company, in question, should have filed it‟s annual return for the financial year 2005 latest by 31.03.2005. Since, the Company has not filed the said annual return in the office of the Registrar of Companies, Bihar and Jharkhand, Patna, in spite of the show cause notice to the Company and it‟s Directors, the Company and it‟s Directors are liable for punishment under Section 162(1) of the Act. On filing of such complaint, cognizance has been taken by order, dated 29.07.2006, against the accused petitioners under Section 162 1) of the Act. 3. Counsel for the petitioners has assailed the order taking cognizance on two grounds. 4. The first ground is that the offence under Section 3 162(1) of the Act read with Section 220 sub section (2) of the Act is punishable only with fine which may be rupees fifty per day and be extended up to rupees five hundred per day. Since, there is no other sentence prescribed under Section 162(1) of the Act for not filing it‟s annual return as provided under Section 159 of the Act within the prescribed time, the period of limitation for filing of such complaint as provided under Section 468 sub section 2(c) of the Criminal Procedure Code is six months. In case, the complaint was filed after expiry of the period of limitation as provided under Section 468(2)(c) of the Criminal Procedure Code, it was mandatory for the complainant to file a petition under Section 473 of the Criminal Procedure Code for extension of period of limitation. Since, it was not filed and period of limitation was not extended by the Special Judge, Economic Offences, Patna, the order, taking cognizance, dated 29.07.2006, in Complaint Case No. 877 C of 2006 is barred by limitation and fit to be quashed. In support of his submission, petitioner‟s counsel has placed reliance on a decision reported in 2007 (1) P.L.J.R., 338, (Atul Krishna Biswas Vrs. State of Bihar & Anr.). 5. Counsel for the petitioners has further submitted that 4 admittedly the return was not filed within the time prescribed, but, the return was filed belatedly on 25.04.2007 with fine and penalty which has duly been accepted by the complainant. In this circumstance also, continuance of any criminal proceeding for not filing the statutory return within the time will be only an abuse of process of the Court. 6. The counsel appearing for the Registrar of Companies, Bihar and Jharkhand, Patna, has filed counter affidavit. In paragraph 7 of the counter affidavit, it has been admitted that the required statutory return was filed by the Company and it‟s Directors belatedly on 25.04.2007, which should have been filed on or before 30.11.2005. Since, the return was filed after the delay of one year four months and twenty five days, by such time the offence had already been committed on the last date fixed for filing the Annual meeting. The offence so committed continued till the date the return was filed. Since, the offence is continuous offence, as such, question of period limitation does not arise and the order taking cognizance does not come within the purview of Section 468 of the Criminal Procedure Code. The cognizance has been taken under Section 162(1) of the Act, which is a continuing offence, as such, objection raised by the petitioners is not 5 sustainable. 7. Section 162 sub section (1) of the Companies Acts 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 extent to [five hundred] rupees for every day during which the default continue.” 8. On reading of this provision, it is apparent that only punishment which has been provided for not filing Company‟s statutory annual return within the prescribed time is fine and there is no other punishment provided. 9. In this circumstance, I am of the view that the period of limitation as provided under section 462(2)(a) of the Criminal Procedure Code is applicable in the present case. Even if it is considered that it is a continuing offence, continued till the date the return was filed, in such circumstance, it was desirable for the complainant to file an application for condonation of delay and for extension of period of limitation under Section 473 of the Criminal Procedure Code. Admittedly, it was not done and delay 6 has not been condoned. 10. I find that the reported decision on similar point 2007 (1) P.L.J.R., 338 is fully applicable in the facts of the present case. 11. Another ground, which was been taken by the petitioner‟s counsel is that two complaint cases were filed by the Registrar of Companies, Bihar and Jharkhand, Patna, one for not filing the balance sheet of the Company and another for not filing statutory annual return of the Company. Both these come within the purview of Sections 159 to 161 of the Act for which punishment is provided under Section 162 of the Act. Complaint case filed furnishing the balance sheet of the Company in the office of the Registrar of Companies, Bihar and Jharkhand, Patna, registered as Complaint Case No. 8766 of 2006 was for Consideration before this Court in Cr. Misc. No. 29656 of 2007. considering all aspects, legal as well as factual, the order, taking cognizance as well as the entire criminal proceeding of Complaint Case No. 876 C of 2006 was quashed in Cr. Misc. No. 29656 of 2007 (Kanahaiya Lal Darak Vrs. The State of Bihar & Ors.) by order, dated 07.03.2008. 12. The fact of the present case as well as the provision 7 applicable in the present case is similar. There is no reason for not considering the case of the petitioner for quashing the entire criminal proceeding as well as the order, taking cognizance. 13. I find substance in the submission of the counsel for the petitioners. 14. On consideration of the entire aspect, I hold that the continuation of the criminal proceeding will be an abuse of the process of the Court for the reason that the return filed by the petitioners‟ Company has already been accepted by the complainant and also that the order, taking cognizance, is barred by limitation and in the similar matter already a finding has been recorded by this Court whereby entire criminal proceeding as well as the order, taking cognizance, has been quashed. 15. The order, taking cognizance, in the present case, dated 29.07.2006, as well as the entire criminal proceeding of Complaint Case No. 877 C of 2006 is quashed. 16. This application is allowed. S.A. ( Mridula Mishra, J. )