Gokak
Patel Volkart Ltd. Vs. Dundayya Gurushiddaiah Hiremath & Ors [1991] INSC 40
(14 February 1991)
Saikia,
K.N. (J) Saikia, K.N. (J) Punchhi, M.M.
CITATION:
1991 SCR (1) 396 1991 SCC (2) 141 JT 1991 (1) 376 1991 SCALE (1)193
ACT:
Companies
Act, 1956-Section 630-Continuing offence- Construction of-Court's
duty-.Legislative intention.
Companies
Act,1956-Section 630-"Officer" or "employee"- Includes past
and present officer or employee.
Criminal
Procedure Code, 1972-Section 472-"Continuing offence"-Construction
and nature of-Limitation computation.
Companies
Act, 1956-Section 630(l)(b)-Non-vacation of quarters even after
retirement-Continuing offence for the purpose of limitation.
HEAD NOTE:
Appellant-Company
filed criminal complaints under Section 630(l)(b), Companies Act and Section
406, IPC against its employees (the first respondent of each appeal) as they
did not vacate the company quarters after about six months even after
retirement. The Judicial Magistrate, First Class dismissed the complaints as
the same were not filed within the period of limitation of six months from the
date of retirement of the Respondents-employees.
The
High Court,holding that the offence under Section 630(1) was not a continuing
offence, dismissed the Company's revision petitions.
In the
appeal to this Court on the question, whether the offence under Section 630(l)(b)
of the Companies Act is a continuing offence for the purpose of limitation,
allowing the Appeals of the Appellant- Company, this Court,
HELD:
1. The beneficent provision contained in s. 630, no doubt penal, has been
purposely enacted by the legislature with the object of providing a summary
procedure for retrieving the property of the company: (a) where an officer or
employee of a company wrongfully obtains 397 possession of property of the
company, or (b) where having been placed in possession of any such property
during the course of his employment, wrongfully withholds possession of it
after the termination of his employment. It is the duty of the court to place a
broad and liberal construction on the provision in furtherence of the object
and purpose of the legislation which would suppress the mischief and advance
the remedy. [406B-E]
2."Officer"
or "employee" in s.630 of the Companies Act includes both present and
past officers and employees.[405B- C]
3. The
concept of continuing offence does not wipe out the original guilt, but it
keeps the contravention alive day by day. The courts when confronted with
provisions which lay down a rule of limitation governing prosecutions should
give due weight and consideration to the provisions of s.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. [409D-G]
4. The
expression `continuing offence' has not been defined in the Code. The question
whether a particular offence is a 'continuing offence' or not must ,therefore, necessarily
depend upon the language of the statute which creates that offence, the nature
of the offence and the purpose intended to be achieved by constituting the
particular act as an offence. [409F-H]
5.The
offence under section 630 is not such as can be said to have consummated once
for all. Wrongful withholding, or wrongfully obtaining possession and wrongful
application of the company's property, that is, for purposes other than those
expressed or directed in the articles of the company and authorised by the
Companies Act, can not be said to be terminated by a single act or fact but
would subsist for the Period until the property in the offender's 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 398 not an
instantaneous offence and limitation begins with the cessation of the criminal
act, i.e., with the delivering up or refund of the property. 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. [409H-410E]
6. 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 complaints could not be said to have been barred by limitation.
[410D-F] W.M.I. Cranes Ltd. v. G.G. Advani & Anr., [1984] 1 Kar. Law Cronicle
462 overruled; Bhagirath Kanoria and Ors. v. State of Madhya Pradesh with Bahadur
Singh v. Provident Fund Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev
Krishna Sahi v. Shipping Corporation of India Ltd. and Anr., [1987] 4 S.C.C.
361; Amrit Lal Chum v. Devoprasad Dutta Roy and Anr. etc., [1988] 2 S.C.R. 783;
State of Bihar v. Deokaran Nenshi, [19731 1 S.C.R.
1004; Bhagirath Kanoria & Ors. v. State of Madhya Pradesh & Ors.,
[1985] 1 S.C.R. 626 followed.
Black's
Law Dictionary, Eighth Edition, (Special Deluxe); Salmond and Heuston on the
Law of Torts, 19th Edn. Page 50; Halsbury's Laws of England. 4th Edn. Vol 45, Para 1389-referred to.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal Nos. 97, 98, 99 100 & 101 of 1991.
From
the Judgment and Order dated 2.12.1989 of the Karnataka High Court in Criminal
R. P. No. 458, 459, 460, 461 and 462 of 1989.
A.S. Bobde,
Attorney General, Vinod Bobde and S. Sukumaran for the Appellant.
G. Ramaswamy,
K.N. Nobin Singh and Ms. Lalitha Kaushik for the Respondents. M.Veerappa for
the State of Karnataka.
The
Judgment of the Court was delivered by K.N. SAIKIA, J. Special leaves granted.
399
These five appeals are from as many similar orders of the High Court of
Karnataka at Bangalore dismissing the appellant company's criminal revision
petitions impugning the respective orders passed by the Judicial Magistrate
First Class, Gokak holding that the appellants' complaints against the
respondents alleging offence under section 630(l)(b) of the Companies Act by
not vacating the Company's quarters as required by it even more than six months
after retirement of the respondents, were barred by limitation and the same
could not be taken into consideration.
The
first respondent in each of these criminal appeals was appointed on 1.8.1942,
11.6.1945, 24.11.1939, 1.5.1939 and 23.1.1937, respectively. in the service of
the appellant company and they retired on 14.3.1984, 1.10.1983, 12.2.1984,
4.10.1983 and 27.1.1981, respectively, from the appellant company's service,
where after each of them was required to vacate his company's quarter. Each
having declined to vacate the company's quarter even more than six months after
retirement, despite legal notice, the appellant company filed a private
criminal complaint under s. 630(l)(b) of the Companies Act, 1956 and s.406
I.P.C. against each of them, before the Judicial Magistrate First Class, Gokak
and in each case, after inquiry framed charges for offences under s. 406 I.P.C.
and s. 630(l)(b) of the Companies Act, 1956. The learned Judicial Magistrate,
after prosecution had examined its witnesses, recorded the statements of all
the accused under s. 313 of the Cr. P.C. and despite finding that the accused
in each case was allotted a quarter by the company for his use and occupation
and each had no authority to retain possession of the same after he retired,
and that the cause of action in each case arose when the accused failed to
deliver possession of the quarter to the company, held that the documents
produced by, the company did not disclose anything regarding the retirement of
the accused from the service, but at the same time he recorded that during the
course of evidence P.W. 1 had deposed that each of the accused retired from
service and immediately after the retirement failed to redeliver possession of
the company's quarter which attracted s. 630(l)(b) of the Companies Act and
which was punishable only with fine and the complaint, therefore, ought to have
been filed within six months from the date of retirement of the accused, and as
the complaint was filed only during the year 1985 it was clearly barred by
limitation, wherefore, ,the complaint could not be taken into consideration,
and consequently, the accused was to be acquitted. The Company's revision
petition therefrom was dismissed by the High Court holding that the view taken
by the trial Magistrate was plausible and reasonable as the complaint was filed
in each case 400 beyond six months from the date of the alleged offence and
that the question, of limitation was concluded by a decision of the same High
Court in W.M.I Cranes Ltd. v. G.G. Advani & Anr., [19841] Kar. Law Cronicle
462 wherein it was held that the offence under s. 30 (1) of the Companies Act
was not a continuing offence and the decisions of this Court in Bhagirath Kanoria
and Ors. v. State of Madhya
Pradesh with Bahadur
Singh v. Provident Fund Inspector & Ors. and Raja Bahadur Singh v. Provident
Fund Inspector and Ors., AIR 1984 SC 1688 would not be of any assistance to the
petitioner.
Mr.
A.S. Bobde, the learned counsel appearing for the appellant company, submits
that the offence under s. 630(1)(b) of the Companies Act, 1956 is a continuing
offence and the learned courts below erred in holding to the contrary and
dismissing the company's complaints on the ground of limitation.
Mrs. Lalitha
Kaushik, the learned counsel for each of the first respondent, submits that
when the first respondent upon his retirement failed to vacate and deliver
possession of the company's quarter to the company, the offence must be taken
to have been complete, and thereafter right could accrue to the first
respondent by adverse possession; and that if this state of affairs continued
till completion of the period of limitation the company's right would be
extinguished. The trial court as well as the High Court, according to counsel,
rightly held that the offence was not a continuing one.
The
only question to be decided in these appeals, therefore, is whether the offence
under s. 630(l)(b) of the Companies Act is a continuing offence for the purpose
of limitation.
What
then is a continuing offence? According to the Blacks' Law Dictionary, Fifth
Edition (Special Deluxe), 'Continuing means "enduring; not terminated by a
single act or fact; subsisting for a definite period or intended to cover or
apply to successive similar obligations or occurrences." Continuing
offence means "type of crime which is committed over a span of time."
As to period of statute of limitation in a continuing offence, the last act of
the offence controls for commencement of the period. "A continuing
offence, such that only the last act thereof within the period of the statute
of limitations need be alleged in the indictment or information, is one which
may consist of separate acts or a course of conduct but which arises from that
singleness of thought, purpose or action which may be deemed a single
impulse." So also a 'Continuous Crime' means "one consisting 401 of a
continuous series of acts, which endures after the period of consummation, as,
the offence of carrying concealed weapons. In the case of instantaneous crimes,
the statute of limitation begins to run with the consummation, while in the case
of continuous crimes it only begins with the cessation of the criminal conduct
or act." 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 fregit) 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 it-in each case without lawful
Justification.
Trespass
by remaining on land, as we read in Salmond and Heuston on the Law of Torts,
19th Edn., page 50: "Even a person who has lawfully entered on land in the
possession of another commits a trespass if he remains there after his right of
entry has ceased. To refuse or omit to leave the plaintiff's land or vehicle is
as much a trespass as to enter originally without right. Thus any person who is
present by the leave and licence of the occupier may, as a general rule, when
the licence has been properly terminated, be sued or ejected as a trespasser,
if after request and after the lapse of a reasonable time he fails to leave the
premises." Trespass in Law of Torts may be a continuing one. The authors
write: "That trespass by way of personal entry is a continuing injury,
lasting as long as the personal presence of the wrongdoer, and giving rise to
actions de die in diem so long as it lasts, is sufficiently obvious. It is well
settled, however, that the same characteristic belongs in law even to those
trespasses which consist in placing things upon the plaintiff's land. Such a
trespass continues until it has been abated by the removal of the thing which
is thus trespassing; successive actions will lie from day to day until it is so
removed:
and in
each action damages (unless awarded in lieu of an injunction) are assessed only
up to the date of the action. Whether this doctrine is either logical or
convenient may be a question, but it has been repeatedly decided to be the
law." Again if the entry was lawful but is subsequently abused and
continued after the permission is determined the trespass may be ab initio. In
1610 six carpenters entered the Queen's Head Inn, Cripplegate, and consumed a
quart of wine (7d.) and some bread (1d.), for which they refused to pay. The
question for the court was whether 402 their non-payment made the entry tortious,
so as to enable them to be sued in trespass quare clausum fregit. The court
held that: "When entry, authority or licence is given to any one by the
law, and he doth abuse it, he shall be a trespasser ab initio," but that
the defendants were not liable as their non-payment did not constitute a
trespass.
The
rule is that the authority, having been abused by doing a wrongful act under
cover of it, is cancelled retrospectively so that the exercise of it becomes
actionable as a trespass.
In Halsbury's
Laws of England, 4th Edn. Vol. 45 para 1389 it is said:
"If
a person enters on the land of another under an authority given him by law,
and, while there, abuses the authority by an act which amounts to a trespass,
he becomes a trespasser ab initio, and may be sued as if his original entry
were unlawful. Instances of any entry under the authority of the law are the
entry of a customer into a common inn, of a reversioner to see if waste has
been done, or of a commoner to see his cattle.
To
make a person a trespasser ab initio there must be a wrongful act committed; a
mere nonfeasance is not enough." Against the above background, we may now
examine the relevant provision of law, keeping in mind that Some of the Torts
have counterparts in Criminal law in India.
Section
441 of the Indian Penal Code defines Criminal trespass as follows:
"Whoever
enters into or upon property in the possession of another with intent to commit
an offence or to intimidate, insult or annoy any person in possession of such
property, or having lawfully entered into or upon such property, unlawfully
remains there with intent thereby to intimidate, insult or annoy any such
person, or with intent to commit an offence, is said to commit 'criminal trespass'."
House trespass is punishable under section 448 of the Indian Penal Code. It is
significant that when entry into or upon property in possession of another is
lawful then unlawfully remaining upon such property 403 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. The authors of the
Code had the following words to say:
"We
have given the name of trespass to every usurpation, however slight, of
dominion over property. We do not propose to make trespass, as such, an
offence, except when it is committed in order to the commission of some offence
injurious to some person interested in the property on which the trespass is
committed, or for the purpose of causing annoyance to such a person. Even then
we propose to visit it with a light punishment, unless it be attended with
aggravating circumstances.
These
aggravating circumstances are of two sorts. Criminal trespass may be aggravated
by the way in which it is committed. It may also be aggravated by the end for
which it is committed." Section 630 of the Companies Act reads as under:
"Penalty
for wrongful withholding of property.
(1) If
any officer or employee of a company- (a) wrongfully obtains possession of any
property of a company or (b) having any such property in his possession,
wrongfully withholds it or knowingly applies it to purposes other than those
expressed or directed in the articles and authorised by this Act;
he
shall, on the complaint of the company or any creditor or contributory thereof,
be punishable with fine which may extend to one thousand rupees.
(2)
The Court trying the offence may also order such officer or employee to deliver
up or refund, within a time to be fixed by the Court, any such property
wrongfully 404 obtained or wrongfully withheld or knowingly misapplied,or in
default, to suffer imprisonment for a term which may extend to two year."
Thus, both wrongfully obtaining and wrongfully withholding have been made
offence punishable under sub-sec. (1). Under sub-sec. (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 sub-section (2).
Section
468 of the Criminal Procedure Code says:
"Bar
to taking cognizance after lapse of the period of limitation- (1) Except as
otherwise provided elsewhere in this Code, no Court shall take cognizance of an
offence of the category specified in sub- section (2), after the expiry of the
period of limitation.
(2)
The period of limitation shall be- (a) six months, if the offence is punishable
with fine only;
(b)
one year, if the offence is punishable with imprisonment for a term not exceeding
one year;
(c)
three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
(3)
For the purposes of this section, the period of limitation, in relation to
offences which may be tried together, shall be determined with reference to the
offence which is punishable with the more severe punishment or, as the case may
be, the most severe punishment." The parties have not disputed that this
case attracted s. 468(1) and (2)(a). Regarding the fact of the first respondent
having retired from service though the trial Magistrate observed that the
document did not specifically state that the first respondent retired, when
after 405 referring to oral evidence the cause of action under s.
630(l)(b)
was held to have arisen on the first respondent's failure to vacate and deliver
possession of the company's quarter and that the period of limitation ran there
from tant amounted to finding that the first respondent did retire.
"Officer"
or "employee" in s. 630 of the Companies Act includes both present
and past officers and employees. In Baldev Krishna Sahi v. Shipping Corporation
of India Ltd. and Anr., [1987] 4 SCC 361 at paragraph 8 of the report this
Court said:
"Section
630 of the Companies Act which makes the wrongful withholding of any property
of a company by an officer or employee of the company a penal offence, is
typical of the economy of language which is characteristic of the draughtsman
of the Act. The section is in two parts. Sub-section (1) by clauses (a) and (b)
creates two distinct and separate offences. First of these is the one
contemplated by clause (a), namely, where an officer or employee of a company
wrongfully obtains possession of any property of the company during the course
of his employment, to which he is not entitled. Normally, it is only the
present officers and employees who can secure possession of any property of a
company.
It is
also possible for such an officer or employee after termination of his
employment to wrongfully take away possession of any such property. This is the
function of clause (a) and although it primarily refers to the existing
officers and employees, it may also take in roast officers and employees. In
contrast, clause (b) contemplates a case where an officer or employee of a
company having any property of a company in his possession wrongfully withholds
it or knowingly applies it to purposes other than those expressed or directed
in the articles and authorised by the Act. It may well be that an officer or employee
may have lawfully obtained possession of any such property during the course of
his employment but wrongfully withholds it after the termination of his
employment. That appears to be one of the functions of clause (b). It would be
noticed that clause (b) also makes it an offence if any officer or employee of
a company having any property of the company in his possession knowingly
applies it to purposes other than those expressed or directed in the articles
and authorised by the Act. That would primarily 406 apply to the present
officers and employees and may also include past officers and employees.
There
is therefore no warrant to give a restrictive meaning to the term 'officer or
employee' appearing in sub-section ( 1) of section 630 of the Act. It is quite
evident that clauses (a) and (b) are separated by the word 'or' and therefore
are clearly disjunctive." This Court also observed at paragraph 7 of the
report that the beneficent provision contained in s. 630, no doubt penal, has
been purposely enacted by the legislature with the object of providing a
summary procedure for retrieving the property of the company (a) where an
officer or employee of a company wrongfully obtains possession of property of
the company, or (b) where having been placed in possession of any such property
during the course of his employment, wrongfully withholds possession of it
after the termination of his employment. It is the duty of the court to place a
broad and liberal construction on the provision in furtherence of the object
and purpose of the legislation which would suppress the mischief and advance
the remedy.
"It
is the duty of the court to place a broad and liberal construction on the
provision in furtherence of the object and purpose of the legislation which would
suppress the mischief and advance the remedy.
As was
reiterated in Amrit Lal Chum v. Devoprasad Dutta. Roy and Anr. etc., reported
in [1988] 2 SCR 783 that "s. 630 of the Companies Act 1956 plainly makes
it an offence if an officer or employee of a company who was permitted to use
the property of the company during his employment, wrongfully retains or
occupies the same after the termination of his employment. It is the wrongful
withholding of such property, meaning the property of the company after the
termination of the employment, which is an offence under s. 630(1) of the
Act." What then is the nature of this offence. The question then is
whether it is a continuing offence. According to Black's Law Dictionary Revised
Fourth Edition, continuing offence means a transaction or a series of acts set
on foot by a single impulse, and operated by an unintermittent force, no matter
how long a time it may occupy. In State of Bihar v. Deokaran Nenshi, [1973] 1
SCR 1004, the question was whether the failure to furnish returns on the part
of the owner of a stone quarry under regulation 3 of the Indian Metalliferrous
Mines Regulations, 1926 even after warning from the Chief Inspector was a
continuing offences Section 79 of the Mines Act, 1952 which provided that no
Court shall take cognizance of an offence under the Act unless a complaint was
made within six months from the date of the offence 407 and the explanation to
the section provided that if the offence in question was a continuing offence,
the period of limitation shall be computed wherefore to every part of the time
during which the said offence continued Shelat, J. for the court observed:
"A
continuing offence is one which is susceptible of continuance and is
distinguishable from the one which is committed once and for all. It is one of those
offences which arises 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. On every occasion
that such disobedience or non-compliance occurs and recurs, there is the
offence committed. The distinction between the two kinds of offences is between
an act or omission which constitutes an offence once and for all and an act or
omission which continues and therefore, constitutes a fresh offence every time
or occasion on which it continues. In the case of a continuing offence, there
is thus the ingredient of continuance of the offence which is absent in the
case of an offence which takes place when an act or omission is committed once
and for all." Their Lordships referred to English cases Best v. Butler and Fitz-gibbon, [1932] 2 KB 108; Verney
v. Mark Fletcher and Sons Ltd., [1909] 1 KB-444; Rex v. Yalore, [1908] 2 KB-237
and The London County Council v. Worley, [1894] 2 QB 826. In Best v. Butler and
Fitzgibbon (supra) in England, the Trade Union Act, 1871 by s. 12 provided that
if any officer, member or other person being or representing himself to be a
member of a trade union, by false representation or imposition obtained
possession of any moneys, books etc. of such trade union, or, having the same
in his possession wilfully withheld or fraudulently misapplied the same, a
court of summary jurisdiction would order such person to be imprisoned. The
offence of withholding the money referred to in this section was held to be a
continuing offence, presumably because every day that the moneys were wilfully
withheld an offence within the meaning of S. 12 was committed. In Verney's case
(supra) Section 10(1) of the Factory and Workshop Act, 1901 inter alia provided
that every fly-wheel directly connected with steam, water or other mechanical
power must be securely fenced. Its sub-section (2) provided that a factory in
which there was contravention of the section would be deemed not to be kept in
conformity with the Act.
Section
135 provided penalty for an occupier of a factory 408 or workshop if he failed
to keep the factory or workshop in conformity with the Act. Section 146
provided that information for he offence under s. 135 shall be laid within
three months after the date at which the offence came to the knowledge of the
inspector for the district within which the offence was charged to have been
committed. The contention was that in May 1905 and again in March 1908 the
fly-wheel was kept unfenced to the knowledge of the Inspector and yet the
information was not laid until July 22, 1908. The information, however, stated
that the fly-wheel was unfenced on July 5, 1908, and that was the offence charged.
It was held that the breach of s. 10 was a continuing breach on July 10, 1908,
and therefore the information was in time.
The
offence under s. 135 read with s. 10 consisted in failing to keep the factory
in conformity with the Act.
Every
day that the flywheel remained unfenced, the factory was kept not in conformity
with the Act, and therefore, the failure continued to be an offence. Hence the
offence defined in s. 10 was a continuing offence. In London County Council
(supra) s. 85 of the Metropolis Management Amendment Act, 1852 prohibited the
erection of a building on the side of a new street of less than fifty feet in
width, which shall exceed in height his distance from the front of the building
on the opposite side of the street without the consent of the London County
Council and imposed, penalties for offences against the Act and a further
penalty for every day during which such offence should continue after notice
from the County Council. The Court construed s. 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 any one who was guilty of
continuing the building at the prohibited height after notice from the County
Council.
State
of Bihar v. Deokaran Nenshi, (supra) was explained by this Court in Bhagirath Kanoria
& Ors. v. State of Madhya Pradesh & Ors., [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
employer's 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 s. 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 409 by the High Court in revision, the
Directors in appeal to this Court contended that the offence of non-payment of
the employer's contribution could be committed once and for all on the expiry
of 15 days after the close of every month and, therefore, prosecution for the
offence should have been launched within the period of limitation provided in
s. 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
employer's contribution to the Provident Fund before the due date, was a
'continuing offence' and, therefore, the period of limitation prescribed by s.
468 of the Code could not have any application and it would be governed by s.
472 of
the Code, according to which, a fresh period of limitation began to run at
every 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:
"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." 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 S. 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.
The
expression 'continuing offence' has not been defined in the Code. The question
whether a particular offence is a 'continuing offence' or not must, therefore,
necessarily depend upon the language of the statute which creates that offence,
the nature of the offence and the purpose intended to be achieved by
constituting the particular act as an offence.
Applying
the law enunciated above to the provisions of Section 630 of the Companies Act,
we are of the view that the offence under 410 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 company's 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
offender's 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
property 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 mis-applied 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 company's quarter to the company the offence must be taken to
have been complete, has, therefore, to be rejected.
These
appeals accordingly succeed. The impugned orders are set aside and the cases
are remanded to the Trial Court for disposal in accordance with law in light of
the observations made herein above.
V.P.R.
Appeals allowed.
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