Delhi High Court
Shalini Marwah And Anr. vs The Registrar Of Companies, Delhi ... on 6 January, 2005
Author: B D Ahmed
Bench: B D Ahmed
JUDGMENT
Badar Durrez Ahmed, J.
1. In all these eight petitions common questions arise and, therefore, they are taken up for hearing together and are being disposed of by this common order and/or judgment.
2. These petitions are directed against notices issued by the ACMM, Delhi under Section 251 of CrPC in respect of alleged offences punishable under Section 162 read with Section 220(3) of the Companies Act, 1956. The allegations are that the annual returns and the balance sheets of the concerned company-B.K. Perfumers (P) Ltd had not been furnished in time in respect of the following periods:-
i) 30.06.1986 to 30.01.1987
ii) 30.06.1987 to 30.01.1988
iii) 30.06.1988 to 30.01.1989
iv) 30.06.1989 to 28.01.1990
3. It is submitted that the complaints were initiated/filed on 29.10.1991. The petitioners' case is two-fold. In the first instance, the learned counsel for the petitioner submitted that both the petitioners--Shalini Marwah and Shri Mahesh Dhar--had resigned from the Board of Directors of the said company w.e.f. 31.01.1985 and had nothing to do with the affairs of the company from that day onwards. The non-filing of the annual returns and the balance sheets for the aforesaid four periods are offences which have occurred after the date of resignation. There is no dispute with regard to the date of resignation of the said two petitioners inasmuch as the said company has filed the relevant Form 32, a copy whereof is at page 14A of the Paper Book in CRL M (C) 2284/2002. The Form 32 clearly indicates that both these petitioners had resigned as Directors w.e.f. 31.01.1985 and had, therefore, nothing to do with the said company as Directors. That being the case, it is the petitioners' contention that no offence is made out at the hands of the petitioners.
4. The second point that has been raised by the learned counsel for the petitioners is that the alleged offences and particularly the offence under Section 220(3) of the Companies Act, 1956 is not a continuing offence and the period of limitation would start running from the date on which the said returns/balance sheets were due to be filed. In support thereof, he has relied upon the decision of the Division Bench of the Calcutta High Court in the case of Indian Die C.C.P Ltd and Ors v. The State and Ors: 1988 (3) Crimes 536. In that decision, it has categorically been held that the offences arising from the violations of the provisions of Section 220 of the Companies Act were completed on the petitioner's failure to furnish the balance sheets and the profit and loss accounts by the due date.
5. From the facts disclosed in the petitions, it is amply clear that the petitioners had resigned from the company w.e.f. 31.01.1985 and, therefore, they cannot be held responsible for any act or commission or omission on the part of the said company after that date. The due date for the filing of the annual returns and the balance sheets for the aforementioned years fell after the date of the said resignation. Therefore, the learned counsel for the petitioners would be right in his submissions that the petitioners cannot be foisted with the liability of non-compliance of the provisions of Section 160 and 220 for filing of annual returns and balance sheets in time. Although it is not necessary, in view of what has been stated above, it does appear that the action against the petitioners would also be barred by limitation as neither of the offences for the late filing of the annual returns or non-filing of the balance sheets would be a continuing offence as in each case, as would be apparent from the provisions of Section 160 and 220, the due date is prescribed for such filing. Once it is not filed withing that period, the offence has been committed and, therefore, there is no question of there being a continuing offence. Accordingly, the impugned notices against the petitioners in each case are quashed and set aside.
dusty.
