TaxTMI 
TaxTMI 
2009 (3) TMI 578
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.... dated 21-7-2004 without application of mind and has passed the impugned order in a most mechanical and casual manner. 3. It has been submitted by the petitioners that M/s. VLS Finance Ltd., a subsidiary of the petitioner had been harassing the petitioner for a long time and it is at their behest that the present complaint was filed after a long delay. Yet the ACMM has taken cognizance of the complaint though the cognizance thereof cannot be taken in view of the bar contained under section 468 of Cr. P.C. as the period of limitation for the offence, as alleged against the petitioner, is only 6 months inasmuch as the offence punishable with fine only. However, in this case the complaint has been filed in 2004 whereas the period of limitation expired on February 2000 inasmuch as the inspection which is the basis of the filing of the complaint was carried out by the Registrar of Companies under section 209-A in the affairs of the petitioner-company was conducted in 1999. Reference has also been made to a judgment of this Court in Vinod Kumar Jain v. Registrar of Companies [1987] 2 Comp. LJ 188. It is, thus, submitted that since the cognizance could not have been taken by the ACMM, ....
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....mpany Affairs, Shastri Bhawan, New Delhi accorded its sanction only on 13-4-2004 and in terms of section 468 of Cr. P.C. 1973, the present complaint is not barred by limitation. Photocopy of sanction letter is marked as Annexure 5 to the complaint." 5. At this stage, it would be also appropriate to take note of the provisions contained under sections 372(4) and 374 of the Companies Act which reads as under :- "372. Purchase by company of shares, etc., of other companies.-(1) A company, whether by itself or together with its subsidiaries (hereafter in this section and section 373 referred to as the investing company), shall not be entitled to acquire, by way of subscription, purchase or otherwise (whether by itself, or by any individual or association of individuals in trust for it or for its benefit or on its account) the shares of any other body corporate except to the extent, and except in accordance with the restrictions and conditions, specified in this section. (2) The Board of directors of the investing company shall be entitled to invest in any shares of any other body corporate up to such percentage of the subscribed equity share capital, or the aggregate of the pa....
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.... except those not entitled to vote thereon, and unless further notice of the resolution to be moved at the meeting has been given to every director in the manner specified in section 286." 6. Section 374 of the Companies Act reads as under :- "374. Penalty for contravention of section 372 or 373.-if default is made in complying with the provisions of section 372 excluding sub-sections (6) and (7) or section 373, every officer of the company who is in default shall be punishable with fine which may extend to fifty thousand rupees." 7. Similarly, it will also be appropriate to take note of section 468 of Cr. P.C. "468. Bar to taking cognizance after lapse of the period of limitation.- (1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a )Six months, if the offence is punishable with fine only; (b )One year, if the offence is punishable with imprisonment for a term not exceeding one year; (c )Three years, if the offence is punishable with imprisonment for a term exceeding one year....
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....ay. As pointed out by him, the cryptic order" and find prima facie grounds to proceed against the accused under section 473 Criminal Procedure Code .....", does not disclose whether the learned Additional Chief Metropolitan Magistrate condoned the delay and if so, on what ground. (6) Sub-section (1) of section 468 of the Code lays down that except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub-section (2) thereof after the expiry of the period of limitation prescribed in clauses (a), (b) and (c ) of the sub-section. Obviously the bar of limitation operates before the court takes cognizance of an offence. Under clause (a). Sub-section (2) of section 468, the period of limitation is six months if the offence is punishable with fine only as is admittedly the position in the instant case. Section 469 of the Code prescribes the terminus a quo for the commencement of period of limitation. It is the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence, the first day on which such offence comes to the knowledge of such person whichever is earlier. In the....
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....by special leave to the Supreme Court but the same was dismissed with the following observations which are very pertinent to notice : 'The object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.' (10) Obviously an accused person acquires a valuable right the moment his prosecution is barred by limitation. Hence, that right cannot be taken away except in accordance with the provisions of law. It is, therefore, imperative for the court taking cognizance of the offence to apply its judicial mind as to whether the prosecution has sat....
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....e institution of any prosecution for an offence, than, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.-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 the order of the Government or other authority shall both be excluded. 13. It may be observed here that in the whole complaint which has been filed by the respondent No. 1 it has nowhere been stated that as to when the application for seeking sanction for the prosecution of the petitioner was lodged before the Department of Company Affairs, Shastri Bhawan, New Delhi though it has been stated that sanction was granted only on 13-4-2004. It is submitted in para 4 of the complaint, as quoted above, that the inspection of the records of the petitioner company was conducted on 31-3-1993. Thus, in the complaint there is no averment to justify the delay which has been caused in filing of the complaint. In the order of summoning also, there....