ORDER

The Criminal Original Petition is filed to quash the complaint in E.O.C.C.No.290 of 2011 on the file of the learned Additional Chief Metropolitan Magistrate Court, (Economic Offences-II), Egmore, Chennai.

2. The petitioners have been accused of an alleged offences under Section 224(8)(b) of the Companies Act. The allegations made in the complaint are briefly as follows:

(i) That the company, M/s.Subhiksha Trading Services Ltd., of which the petitioners are the Managing Director/Secretary has not complied with the provisions of Section 224(8)(b) of the Companies Act, the remuneration of the Auditor of the company shall be fixed by the company in general meeting or in such manner of the company in general meeting may determine.

(ii) In the Annual General Meeting held on 29.09.2004, M/s.Deloittee Haskings & sells, Chartered Accountants were appointed as Auditors of the company at a fee that may be fixed by the Board of Director.

(iii) That the Board of Directors have not fixed Auditors remuneration.

(iv) The Company has paid Rs.5.50 Lakhs for the year ended 31.03.2005 as Auditor's remuneration.

(v) That a show cause notice dated 31.03.2011 was issued.

(iv) That replies received were not convincing. Hence the prosecution.

(v) That the Regional Director instructed the respondent herein to launch prosecution in and by a letter No.13(34)/2010 dated 28.03.2011.

3. The complaint has been taken on file by the learned Additional Chief Metropolitan Magistrate (Economic Offences-II), Egmore, Chennai.

4. The 2nd petitioner R.Subramanian, appeared in person and would contend that the alleged offence under Section 224(8)(b) of the Companies Act, is not a continuing offence and since the complaint has been filed after the period of limitation under Section 468 (2) of the Cr.P.C., the learned Magistrate ought not to have taken cognizance.

5. Per contra, the learned Central Government Standing Counsel appearing on behalf of the respondent would contend that steps have been immediately taken to prosecute.

6. Heard both and perused the records.

7. From the records, the balance sheet was filed with the Registrar of Companies around 30.11.2005. The punishment prescribed therefor is only fine. Consequently, the limitation under Section 468 of Cr.P.C., is six months. Date of alleged knowledge is 20.07.2009 to 30.10.2009.

Complaint is filed on 18.04.2011.

8. Regarding whether an offence is a continuing offence or not, reliance can be placed upon Teledata Technology Solutions Limited and others V The Deputy Registrar of Companies, Chennai reported in 2022 SCC OnLine Mad 102 dated 11.01.2022, in which the Court held as follows:

12. The expression “continuing offence” has not been defined in the Code of Criminal Procedure, 1973. However, the courts have explained the same in number of judgments. In the case of continuing offence, the ingredients of offence continues even after the offence takes place, whereas in an instantaneous offence, the offence took place once and for all, in such case, there is no continuance of offence. For the offence arising out of a failure to comply with a statutory provision, which is involves penalty, the liability continues until the default is complied with complied with and on every moment of such non compliance occurs and recurs, there is an offence committed and it is a continuing offence until the default is complied with.

13. In Udai Shankar Awasthi v. State of U.P., (2013) 2 SCC 435, the Honourable Supreme Court has explained the expression "continuing offence” as under:- “

......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 t