Case: Gokak Patel Volkart Limited Vs. Dundayya Gurushiddaiah Hiremath &amp; Others

continue after notice from the County Council. The court construed Section 85 to have laid down two offences; (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council. The latter offence was a continuing offence applying to anyone who was guilty of continuing the building at the prohibited height after notice from the County Council 23. State of Bihar v. Deokaran Nenshi ( 1972 (2) SCC 890 : 1973 SCC(Cri) 114 : 1973 (1) SCR 1004 ) was explained by this Court in Bhagirath Kanoria v. State of Madhya Pradesh ( 1984 (4) SCC 222 : 1984 SCC(Cri) 590 : 1985 (1) SCR 626). Therein, the Provident Fund Inspector filed complaints against the Directors, the Factory Manager and the respondent company charging them with non-payment of employers contribution under the Employees Provident Fund and Family Pension Fund Act, 19 of 1952, from February 1970 to June 1971. At the trial the accused contended that since the limitation prescribed by Section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the court had no jurisdiction to take cognizance of the complaints. The trial court having held that the offences of which the accused were charged were continuing offences and, therefore, no question of limitation could arise, and that order having been upheld by the High Court in revision, the Directors in appeal to this Court contended that the offence of non-payment of the employers contribution could be committed once and for all on the expiry of 15 days after the close of every month and, therefore, prosecution of the offence should have been launched within the period of limitation provided in Section 468 of the Code. Rejecting the contention it was held by this Court that the offence of which the appellants were charged, namely, non-payment of the employers contribution to the Provident Fund before the due date, was a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code could not have any application and it would be governed by Section 472 of the Code, according to which, a fresh period of limitation began to run at ever moment of the time during which the offence continued. It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed fresh offence. Section 472 of the Code of Criminal Procedure deals with continuing offence and says "472. Continuing offence. - In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." * 24. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice 25. The expression continuing offence has not been defined in the Code. The question whether a particular offence is a continued offence or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and that purpose intended to be achieved by constituting the particular act as an offence 26. Applying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub-section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts. Trespass to land in the English law of torts (trespass quare clausum freight) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon itin each case without lawfulis significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable underion (2) knowingly misapplication has also been envisaged. The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the court, and in default to suffer the prescribed imprisonment. The idea of a continuing offence is implied in. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest ofApplying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so(2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected