In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 965 of 2004 Date of decision: May 27, 2009 Employee State Insurance Corporation .. Petitioner Vs. Baljit Singh and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. B.S. Bhalla, Advocate for the petitioner. Mr. Surender Kapoor, Addl. A.G. Punjab. A.N. Jindal, J This order of mine shall dispose of this petition filed by the Employee State Insurance Corporation against the respondents for not filing return of contribution as required under Sections 39, 40, 43 and 44 of the Act read with Regulations of 1950 for the period ending September, 1994 specified under Employee State Insurance Act. The said complaint, being time barred, has been dismissed. Certainly the offence under Section 85 (e) of the Act is punishable with imprisonment for one year and the limitation to file the said complaint was only one year and not beyond that, therefore, the complaint was apparently time barred. However, learned counsel for the petitioner has contended that the offence being continuing one, no provisions under Section 468 Cr.P.C. could be applied. In this regard, learned counsel for the appellant has pressed into service the judgment Bhagirath Kanoria and others vs. State of M.P. AIR 1984 Supreme Court 1688. Having heard the contentions, it may be observed that the said judgment is not applicable to the facts of the present case. The return could not be filed as business premises of the appellant had closed. No employee was working with it and no wages were paid to any employee, as such, contribution was not required to be made to the Corporation. The aforesaid judgment refers to non deposit of the employer's contribution to the Crl. Revision No. 965 of 2004 -2- *** Provident Fund on the due date but non filing of return of contribution is not a continuing offence, in view of the judgment delivered in case Shivalik Ice Factory and Cold Storage Pvt. Ltd. vs. The Registrar of Companies, 1987 (2) P.L.R. 267 wherein it was observed as under :- “Thus, the important point for consideration in this case is whether the offences under Sections 159 and 220 of the Act are continuing offences or not. It was held by the Calcutta High Court in Ajit Kumar Sarkar v. Assistant Registrar of Companies (1979) 49 Company Cases 909, that failure to file annual return under Section 159 is a continuing offence. This view was followed by the Kerala High Court in Sudarshan Chits (India) Ltd. and others vs. Registrar of Companies, Kerala, (1986) 59 Company Cases 261. However, a Division Bench of the Calcutta High Court overruled the judgment in the case of Ajit Kumar Sarkar (supra) in National Cotton Mills and others v. Assistant Registrar of Companies, West Bengal, and another (1984) 56 Company Cases 222. The learned Judges held that in order to constitute a continuing offence, it must arise 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. It was observed that Section 169 of the Act, which requires every company to file with the Registrar the particulars specified in the Section in the form of a return within sixty days from the date on which the annual general meeting is held, does not impose any liability which so continues. The offence on the breach thereof is complete with the failure to furnish the return in the manner or within the time stipulated. Such an offence is-committed once and for all as and when one commits the default. The provision does not contemplate that the obligation to submit the returns continues from day to day until the return is actually submitted nor does it provide that continuance of business without filing of such returns is prohibited so that non fulfillment of a continuing Crl. Revision No. 965 of 2004 -3- *** obligation or continuing business without filing of such returns becomes a continuing offence. It was further held that when Section 162 of the Act prescribed the penalty of fine “which may extend to fifty rupees for every day during which the default continues,” it merely prescribes the measures of penalty, such a prescription being made with the object of enforcing strict compliance with the requirement of Section 159 under the threat of enhanced penalty and getting relief from such penalty on enhancing scale by early submission of returns even after the default. That does not tender the initial default a continuous one. It cannot be said that the offence is repeated or committed from day to day after the initial default. It was clarified that it is only where the offence is committed from day to day or repeated from day to day that it can be called a continuing offence. This view was reiterated by the Calcutta High Court subsequently in Nripendra Kumar Ghosh v. Registrar of Companies, West Bengal and others, (1985) 58 Company Cases 672.” As such in view of the observations made in Shivalik Ice Factory's case (supra) the non filing of annual return of contribution is not a continuing offence. As such, the complaint having been filed after the expiry of one year is certainly time barred. Consequently, finding no merit in the petition the same is dismissed. May 27, 2009 (A.N. Jindal) deepak Judge