The court affirmed that non-compliance with regulatory provisions constitutes a continuing offence, extending prosecution limitations under the Companies Act.

ORDER :

Sanjeev S Kalgaonkar, J.

This M.Cr.C. having been heard and reserved for order, coming on for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the following:

This petition under Section 482 of the Code of Criminal Procedure (in short … “the Code”) is filed for quashing of order dated 12.07.2017, passed by the learned Special Judicial Magistrate (CBI and Economic Offence), Indore in Criminal Case No.24/2005 and discharge of the petitioners in the matter.

2. The exposition of the fact giving rise to this petition is as under :-

The Registrar of Companies, M.P. and Chhattisgarh submitted a criminal complaint for offence punishable under Sections 162 and 168 of the COMPANIES ACT , 1956 ( in short .... "the Act, 1956") against M/s. Bonanza Biotech Ltd. and its directors Amit Patel, Rakesh Pandya, Smt. Dhruma Vaghela and Sharad Gujarati. It is alleged that accused No.1 Bonanza Biotech Ltd. Company is public limited company, which is registered under the COMPANIES ACT , 1956. Accused No.2 to 5 namely Amit Patel, Smt. Dhruma Vaghela and Sharad Gujarati are its directors. As per Section 166 of the COMPANIES ACT , the accused/company was bound to conduct Annual General Meeting for year 2001-2004 on 30.09.2001 to 30.09.2004 respectively and was also required to submit annual reports/ returns in prescribed form within 60 days of the Annual General Meeting. Despite issuance of notice dated 04.07.2005 by the complainant, the Company and its directors did not submit the requisite annual reports in accordance with the provisions of the Act. The offence started on 30.11.2001 and continued till date, therefore, accused Nos.1 to 5 be prosecuted and punished for offence punishable under Sections 162 and 168 of the COMPANIES ACT . The complaint was filed on 15.07.2005.

3. The petitioner/accused submitted application for discharge on the ground that the complaint was barred by limitation. Learned Special Judicial Magistrate, CBI, Indore vide order dated 12.07.2017 rejected the application concluding that the offence punishable under Sections 162 and 168 of the Act are continuing offences, therefore, in view of the provisions contained in Section 472 of Cr.P.C., the complaint is within limitation. Further, Form No.32 submitted on behalf of accused/Company shows that the petitioners/accused were Directors of the Company during relevant period. The objections relating to their discharge is merit-less.

4. Feeling aggrieved by order dated 12.07.2017, the present petition is filed, assailing the order on following grounds :

(1) The petitioners were neither the Directors of the Company and nor were in-charge and responsible for day to day business of the Company.

(2) The alleged offence is punishable with fine only. As per the provisions of Section 468 of Cr.P.C., the period of filing complaint was six months which expired on 30.05.2002, 30.05.2003, 30.05.2004 and 30.05.2005 respectively. The complaint was filed on 15.07.2005, therefore, the complaint was barred by limitation.

(3) Learned Magistrate failed to appreciate that the offence under Sections 159 , 161 and 166 are not continuing offence since they relate to making of annual return, annexing certificate to the annual return and conducting annual general meeting. Learned Magistrate did not consider as to what was the date of knowledge of the offence to bring it within limitation. No case against the present petitioners was made out from the material on record.

(4) Learned M