* THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.2389 OF 2004. % Dated 04.08.2011 # K.Ram Reddy ... APPELLANT V. $ M/s.Vishnuvardhan Finance and Chit Funds Pvt.Ltd., rep., by its M.D.P.Saibaba and two others. ...RESPONDENTS ! Counsel for the Appellant : Mr.A.V.Sesha Sai and Mr.P.Durga Prasad ^ Counsel for the Respondents : Mr.V.S.Raju for R-1 and R- 2. Public Prosecutor for R-3. < Gist : > Head Note: ? Cases Referred: [1] [2007] 139 Company Cases 324 (AP) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2389 OF 2004. Date:04.08.2011 Between:- K.Ram Reddy ..Appellant/Complainant And M/s.Vishnuvardhan Finance and Chit Funds Pvt.Ltd., rep., by its M.D.P.Saibaba and others. .. Respondents JUDGMENT:- The complainant filed this appeal questioning acquittal of A.1 and A.2 of the offence under Section 113(2) of the Companies Act, 1956 (in short, ‘the Act’) recorded by the Special Judge for Economic Offences, Hyderabad in S.T.C.No.9 of 1997. 2. The first respondent/A.1 is M/s.Vishnuvardhan Finance and Chit Funds (Private) Limited. The second respondent/A.2 is Director of A.1. Though several allegations under several other penal provisions are alleged in the complaint before the lower Court, the lower Court took cognizance of the case for the offence under Section 113(2) of the Act. After trial, the lower Court found A.1 and A.2 not guilty of the said offence on the grounds that there is no acceptable evidence of the complainant making total payment of Rs.50,000/- towards value of shares in A.1 company and that the complainant, not being a shareholder of A.1 company, is not entitled to institute the prosecution by filing the complaint in view of Section 621 of the Act. 3. In support of his case, the complainant examined himself as P.W.1, examined another shareholder as P.W.3 and husband of another shareholder as P.W.4, apart from examining Clerk in the office of Registrar of Companies as P.W.2. The complainant did not file any extracts of registers maintained by the company or any records maintained by the Registrar of companies to show that he is a registered shareholder of the company in accordance with the provisions of the Act and that any shares with any distinctive numbers were allotted to him. This is not a case where shares are allotted to the complainant with distinctive numbers thereof. In fact, it is the complaint of the complainant that there was no allotment of shares to him after payment of Rs.50,000/- by him to the company. 4. There is no documentary proof for the alleged payment of Rs.50,000/- by P.W.1 to the company by way of two instalments of Rs.25,000/- on 21.04.1991 and Rs.25,000/- on 08.06.1991. The lower Court did not place any reliance on oral evidence of P.Ws.1, 3 and 4 on this aspect because of lack of documentary proof in support thereof. The lower Court also came to the conclusion that no reliance can be placed on evidence of P.Ws.3 and 4 in view of past and pending criminal litigation between them on one hand and the company on the other. On facts, there is no proof to show that P.W.1 paid Rs.25,000/- and Rs.25,000/- to the company towards value of share to be allotted to him. 5. The appellant’s counsel placed heavy reliance on Ex.P- 12 in this regard. Ex.P-12 is titled as ‘Board of Directors’ in A.1 company. While giving names of Chairman, Managing Director, Executive Director, Finance Director and other Directors, the said list contains total names of 45 persons describing them as shareholders. S.No.25 in Ex.P-12 is name of the complainant. The lower Court appears to have not placed any reliance on Ex.P-12 on the ground that it is only a Photostat copy of the list. But Ex.P-12 is not a Photostat copy. It is original list itself. It was signed by one person with rubber stamp of the company. No designation of the person who sighed therein, is mentioned. Last page of Ex.P-12 contains signature of another person also. No designation of that person is also mentioned in Ex.P-12. Ex.P-12 is not an official document. It is a private document, which contains rubber stamp of A.1 company and signature of one person whose designation in the company does not find place. The question of mentioning the complainant as shareholder in Ex.P-12 has no bearing in law because admittedly, no shares with any distinctive numbers were allotted to the complainant in his name much less such shares were not despatched to him. In the absence of allotment of shares to the complainant, it cannot be said that he became a shareholder of A.1 company by virtue of Ex.P-12, which is an unofficial list. When the complainant is not a shareholder of A.1 company, he is incompetent to maintain the complaint for the offence under Section 113(2) of the Act against A.1 and A.2. 6. The payments are alleged to have been made by the complainant to the company on 21.04.1991 and 08.06.1991. The complaint was filed in the lower Court in the year 1997, after a lapse of six years of the alleged payment. Section 113(1) of the Act prescribes time limit of three months for allotment of shares after receipt of the value or for transfer of shares after receipt of application therefor. This is not a case where the Company Law Board extended the said period of thirty days to the extent of another 90 days. Therefore, when a default is committed in allotment of shares by the company or by any officer of the company, then, penal liability under Sub Section (2) thereof flows from their inaction. The offence under Section 113(2) of the Act is punishable with fine which may extend to Rs.5,000/- for everyday during which the default continues. It is contended by the appellant’s counsel that in view of provision for imposition of fine at the rate of Rs.5,000/- for everyday during which the default continues, it is a continuous offence and that therefore, the mischief of limitation under Section 468 Cr.P.C. is not applicable herein. But as per Sub Section (2) of Section 113, the offence is said to have been committed the moment there was default in compliance of Section 113(1) of the Act. The default is committed on the expiry of thirty days time provided under Sub Section (1). Though in prescribing the punishment, enhanced rate of fine is provided by calculating the same on the basis of everyday’s non-compliance, it cannot be said that there is provision for day-to-day default under Sub Section (2). The default occurs only once and does not continue to occur everyday. In that view of the matter, I am of the opinion that the offence under Section 113(2) of the Act is not a continuing offence. 7. This Court in Vinod Baid v. State of A.P.[1], held that the offence punishable under Section 113(2) of the Act is not a continuous offence but period of limitation in that case was completed by this Court from the date of knowledge i.e., from the date of giving of notice by the complainant to the company. That question does not arise in the present case because the complainant did not give any notice to A.1 and A.2 prior to filing of the complaint in the lower Court. In that view of the matter, I am of the opinion that the complaint presented by the complainant in the lower Court after six years of the alleged default, is clearly barred by limitation under Section 468(2)(a) Cr.P.C. Viewed from any angle, the appellant/complainant has no grounds to question the acquittal recorded by the lower Court, in this appeal. 8. In the result, the Criminal Appeal is dismissed. __________________________ SAMUDRALA GOVINDARAJULU, J 04th August, 2011 Note: L.R. Copy to be marked. B/o. AMD THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.A.No.2389 OF 2004. Date:04.08.2011 AMD [1] [2007] 139 Company Cases 324 (AP)