The court clarified the jurisdiction of the Magistrate, the prima facie offence under Section 97(3) of The Act, and the limitation of the complaint, leaving the question of the nature of the offence open for the Magistrate to decide.

1. The petitioners, who are the original accused nos. 2 and 3 in Labour Case No.43/2009/B pending before Judicial Magistrate First Class Panaji, have invoked jurisdiction of this Court under Section 482 of the Criminal Procedure Code.

2. The respondent filed a private complaint alleging commission of offence under Section 97(3) of The Companies Act (“The Act” for short) against the petitioners and others on the ground that they have committed offence punishable under Section 97(3) of The Act by not filing with the Registrar of the Companies notice of increase of share capital in terms of Section 97(1) of The Act.

3. Learned Magistrate, by order dated 17th February, 2010, issued process against the petitioners and the company. The petitioners preferred Criminal Revision Application to the Sessions Court at Panaji bearing No.86/2010 against the order issuing process. The petitioners annexed certain documents with the revision application before the Sessions Court in support of their stand that no offence was committed by the petitioners. The petitioners contended before the revisional Court that the complaint and material produced did not disclose contravention of Section 97(3) of The Act and that complaint was barred by limitation. Additional Sessions Judge, who heard the revision application by Judgment and order dated 7th October, 2010 dismissed the revision application holding that offence under Section 97(3) was continuing offence. Learned Additional Sessions Judge, held that form 5 was not filled by the petitioners till the date of the judgment and as such offence punishable under Section 97(3) was made out.

4. Mr. Sardessai, learned Counsel appearing for the petitioners submitted that as on the date of filing of the complaint i.e 13th February, 2009, the complaint was barred by limitation as the material on record clearly discloses that the cause of action for filing the complaint arose on 21st June, 2006. Learned Counsel further submitted that learned Magistrate has no jurisdiction to entertain the complaint as he could not pass a sentence of fine not exceeding Rs.10,000/- since in terms of complaint fine if imposed would go above Rs.10,000/-. According to learned Counsel, perusal of the complaint filed by the respondent discloses that the complaint has been filed on the allegation that the accused had not filed form 5 within the stipulated time but the complaint does not mention that a challan was generated which the accused failed to pay. Learned Counsel further submitted that even in the show cause notice dated 27th January, 2009 issued to the petitioners there is no reference to the challan having been generated or that there was non-payment of fees. Learned Counsel therefore submitted that on the meaningful reading of the complaint, it is evident that offence alleged is non-filing of form 5 which is not contemplated under Section 97(3) of The Act and as such, the complaint is not maintainable. According to learned Counsel, even if it is assumed that the petitioners have committed an offence punishable under Section 97(3) of The Act, the alleged offence came to the notice of the respondent on 21st June, 2006 and therefore the complaint filed on 13th February, 2009 is barred by limitation under Section 468 of Criminal Procedure Code, since the period of limitation for filing the complaint is six months for the offence punishable with fine only. Learned Counsel further submitted that there is no continuing offence as held by the Sessions Judge. Learned Counsel further submitted that reliance placed by the respondent on the regulations does not advance the case of the respondent inasmuch as regulations are made under Sections 25(1), (5) to (8) and 611 of The Act and not under Section 97 of The Act and therefore these regulations are not attracted in the present case. Learned Counsel further submitted that a subordinate legislation like regulation cannot provide that the particular act would constitute an of