MOOL CHAND GARG, J.(ORAL)

1. The present petitioner is for quashing of compalint (C.C. No.461/2002 dated 07.05.2002)). The ROC/Respondent has filed the said complaint under Section 63 & 628 of Companies Act, 1956 alleging mis-statement/wrong statement in prospectus dated 18.04.1995 (of M/s Cilson Finance & Investment Ltd.) against its directors/signatories. The prospectus was for public issue of 10,00,000 equity shares of Rs.10/- each. This has been admitted by the respondent (U/para 2 & 3) of complaint in page No.22F of petition) that the company had filed prospectus dated 18.04.1995 with the office of respondent and the prospectus was also got registered by respondent before raising public issue. Thus, the respondent was fully aware about the factum of said prospectus from very inception, i.e., 18.04.1995. However, impugned complaint was filed by the respondent on 07.05.2002, i.e., after 7 years while limitation period prescribed u/s 468(2)(c) is 3 years as maximum penalty prescribed for violation of Section 63 & 628 of Companies Act is of two years imprisonment.

2. The defence for filing delayed complaint has been given in para 6 of the complaint (page 22H of petition) that sanction/permission is required from Department of Company Affairs (hereinafter referred to as ‘DCA’) for filing the impugned complaint and the permission was given vide letter dated 03.03.2002. The respondent in their reply to petition under para 8(c) says that there is no delay in filing the complaint under Sections 468, 469, 470,471,472 of Cr.P.C. and says that offence came to their knowledge when they got sanction letter dated 03.03.2002 from DCA.

3. The identical issue of limitation, sanction from DCA, delayed complaint filed by respondent and identical defence given by Registrar of Companies has recently been settled by this Court in Crl.M.C.1777/2005 titled as Sunair Hotels Ltd. Vs. ROC vide order dated 18.03.2009.

4. In that case also, the complaint said to have been filed within the period of limitation if it is counted from the date when they received sanction from DCA and therefore, they were entitled to seek condonation of delay of period which had been taken by the DCA in granting prior permission. The respondent relied upon Section 470 Cr.P.C. (Exclusion of time in certain cases), however, the explanation attached to sub Section 3 to Section 470 Cr.P.C. states that “In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of order of the sanction of Government or other authority shall both be excluded.

5. However, in the complaint filed by respondent, it has nowhere been stated that as to when the application for seeking sanction for prosecution of petitioner was lodged before the DCA though it has been stated that the sanction/permission was given vide letter dt. 13.03.2002 under para 6 of complaint. In the complaint there is also no averment to justify the delay which has been caused in filing the complaint. In the summoning/cognizance order dated 07.05.2002 of learned ACMM also, there is no mention about moving of any such application by the respondent.

6. It is stated that the complaint filed by the respondent is clearly barred by limitation inasmuch as for the purpose of computing the time required for obtaining the sanction of the Government, it was necessary for the respondent to have specified the date on which the application was made for obtaining sanction/permission for computing the period of limitation because as per Explanation, only that period which could have been excluded was the time required for obtaining the sanction of the Government or any authority can only be excluded, if an application is filed after a period of 3 years then the question of exclusion does not arise. The identical issue of limitation has also been decided in Crl.M.C.23/2005 titled as Rajiv Kum

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