TaxTMI 
TaxTMI 
2013 (2) TMI 255
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..... They were prosecuted for offences punishable under Sections 73 (2A) and 73 (2B) of the Companies Act, 1956. The prosecution was initiated by the Registrar of Companies by filing a complaint, the averments in which are as follows: "The complainant is the Registrar of Companies, Kerala. First accused is a public limited company incorporated under the Companies Act having its registered office at Ernakulam and is represented by its managing director second accused. The second accused is to be deemed as "officer who is in default" within the meaning of Section 5 of the Act. In an Extra Ordinary General Body meeting of the first accused company held on 15.01.1991 a special resolution was passed under Section 81(1)(A)(a) of the Act authorisi....
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....ns of Section 73(2A) of the Act. Thereupon the complainant issued a letter to the accused on 31.10.1994 requesting the accused to furnish their explanation in respect of the allegations made in the complaint and also to furnish the details of the refund orders already issued such as the date and number of refund order, particulars of the cheque, date of encashment of the refund order by the alleged applicant etc. The reply dated 3.11.1994 submitted by the second accused did not contain the particulars called for by the complainant. However, it was revealed from the reply of the second accused that though the Company had issued the refund order to the applicant, the same was not issued within the time limit prescribed u/s. 73(2A) of the Act.....
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....or the very same offences, which lead to Crl. R.P. No.3208/04. I have disposed of that Crl.R.P. on 20.11.2012. The judgment in that Crl.R.P. reads as follows: "The petitioners are the accused in S.T.No.164/1995 before the Additional Chief Judicial Magistrate's Court (Economic Offences) Ernakulam. The 1st petitioner is a company and the 2nd petitioner is its Managing Director. They were prosecuted for offences punishable under Sections 73(2A) and 73(2B) of the Companies Act. The prosecution was initiated on a complaint filed by the Registrar of Companies, Kerala. 2. The gist of the complaint as reproduced in the judgment of the appellate court is as follows: "The complainant is the Registrar of Companies, Kerala....
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.... sum of Rs. 2,000/- towards application money in response to the prospectus issued by the first accused and that the first accused neither allotted the shares applied for nor returned the share application money. The department of Company Affairs, in turn forwarded the said complaint to the complainant with instructions to enquire into the allegations levelled against the accused and to ascertain as to whether the accused had contravened the provisions of Section 72(2A) of the Act. Thereupon the complainant issued a letter to the accused on 31.10.1994 requesting the accused to furnish their explanation in respect of the allegations made in the complaint and also to furnish the details of the refund orders already issued such as the date ....
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....unsel for the petitioners are absent. Therefore, I am constrained to consider the matter on the basis of the records of the lower courts and the judgments of the courts below. 5. In the Criminal Revision Petition, the petitioners raise two grounds. The first is that Ext.P5 complaint was not properly proved by the author of the complaint by examining him. Instead, the same was proved through PW1, who is not competent to prove the same, insofar as the complaint was received by the Department of Company Affairs and PW1 had only a hearsay knowledge about the same. The second contention is that the prosecution is barred by limitation. The contention is that under Section 468 of the Cr.P.C., the period of limitation in filing the com....
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.....P5 intimation to the petitioners by the Registrar of Companies directing them to explain the default by the petitioners has been proved in evidence. Ext.P7 reply dated 3.11.1994 did not contain the particulars called for by the Registrar. At least as on 3.11.1994 the petitioners had not refunded the application money. So up to 3.11.1994 at least the offence was a continuing offence. The complaint was filed on 22.4.1995 well within the six months' period from 3.11.1994. Perhaps from the date when actually the application money was refunded, it may not be a continuing offence. But until the refund of the application money, the offence is a continuing offence. As such, I do not find any merit in the contention of limitation raised by th....