TaxTMI 
TaxTMI 
1991 (2) TMI 330
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....uld not be taken into consideration. 3. The first respondent in each of these criminal appeals was appointed on August 1, 1942, June 11, 1945, November 24, 1939, May 1, 1939, and January 23, 1937, respectively, in the service of the appellant-company and they retired on March 14, 1984, October 1, 1983, February 12, 1984, October 4, 1983, and January 27, 1981, respectively, from the appellant-company's service whereafter, each of them was required to vacate the company's quarters. Each having declined to vacate the company quarter even more than six months after retirement, despite legal notice, the appellant-company filed a private criminal complaint under section 630(1)(b) of the Companies Act, 1956, and section 406, Indian Penal Code, against each of them, before the Judicial Magistrate, First Class, Gokak, and, in each case, after inquiry, framed charges for offences under section 406, Indian Penal Code, and section 630(1)(b) of the Companies Act, 1956. The learned Judicial Magistrate, after the prosecution had examined its witnesses, recorded the statements of all the accused under section 313 of the Criminal Procedure Code and despite a finding that the accused in e....
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....ce must be taken to have been complete, and thereafter the right would 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. 6. The only question to be decided in these appeals, therefore, is whether the offence under section 630(1)(b) of the Companies Act is a continuing offence for the purpose of limitation. 7. What then is a continuing offence ? According to Black's 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 limitations in a continuing offence, the last act of the offence controls the commencement of the period. "A continuing offence, such that only the last act thereof within the period of the statute of limitations need ....
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....s either logical or convenient may be a question, but it has been repeatedly decided to be the law." 11. 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, Crip-plegate, and consumed a quart of wine (7d.) and some bread (1d.), for which they refused to pay. The question for the court was whether 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. 12. In Halsbury's Laws of England, 4th edition, Volume 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 a....
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....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 obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years." Thus, both wrongfully obtaining and wrongfully withholding have been made offences punishable under sub-section (1). Under subsection (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 ....
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....t 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 past 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 witholds 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 ....
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....he 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 a warning from the Chief Inspector was a continuing offence. 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 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 betwe....
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....ever, stated that the fly-wheel was unfenced on July 5, 1908, and that was the offence charged. It was held that breach of section 10 was a continuing breach on July 10, 1908, and, therefore, the information was in time. The offence under section 135 read with section 10 consisted in failing to maintain the factory in conformity with the Act. Every day the flywheel remained unfenced, the factory was maintained not in conformity with the Act and, therefore, the failure continued to be an offence. Hence, the offence defined in section 10 was continuing offence. In London County Council [1894] 2 KB 826, section 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 the 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 continued after notice from the County Council. The court construed section 85 as having laid down two offences : (1) building to a prohibited height, and (2) co....
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....l begin to run at every moment of the time during which the offence continues." 23. The concept of a continuing offence does not wipe out the original guilt, but it keeps the contravention alive day after 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 section 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. 24. 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. 25. Applying t....