2022 (12) TMI 859

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r.P.C, the period of limitation is six months and the complaint is filed after the expiry of six months. 3. It is further submitted that in the instant case, the offence is punishable only with a fine, therefore, from the date of knowledge of the offence i.e., 24.06.2013, the complaint should have been filed within six months, however, in the instant case, it was filed on 10.07.2014, hence, it is barred by limitation. She has placed reliance on the following decisions: (i) State of Punjab v. Sarwan Singh (1981) 3 SCC 34, (ii) Udai Shankar Awasthi v. State of U.P. (2013) 2 SCC 435, (iii) State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890, (iv) Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460, (v) State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, (vi) S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, (vii) Jiyuan Li v. Registrar of Companies 2012 SCC OnLine Del 1299, (viii) Sunair Hotels Ltd. v. Registrar of Companies 2009 SCC OnLine Del 536, (ix) Ranjit Mal Kastia v. Registrar of Companies 2002 SCC OnLine HP 60, (x) Krishna Sanghi v. State of M.P. 1975 SCC OnLine MP 94, (xi) N. Kumar v. M.O. Roy 2007 SCC OnLine Mad 406, (xii) Mishra Dhathu Nigam Ltd. v....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ion of the Hon'ble Supreme Court in the case of Shah Faesal v. Union of India 2020 4 SCC 1,. 6. I have heard learned counsel appearing on behalf of the parties and perused the record. 7. A perusal of the order passed by the learned ACMM dated 10.07.2014 indicates that no reason, much less sufficient reason, is assigned while taking cognizance. The said order only states that the learned ACMM perused the complaint which prima facie disclosed offence under Section 233 read with Sections 227(2) and 227(3)(d) of the Companies Act. The order of taking cognizance being non-speaking, deserves to be set aside merely on this ground alone in view of the decision of the Hon'ble Supreme Court in the case of Lalit Kumar Singh & Ors. v. State of Maharashtra 2022 SCC OnLine 1383 and the matter can be remanded back to the learned ACMM. However, at this stage, this court does not find it appropriate to relegate the parties to the court of the learned ACMM and instead would proceed to decide the matter on merits as the same is pending since 2014 and parity is claimed with other orders emanating from the same inspection report. 8. The petitioner, in the instant case, is a partner at Price Water Ho....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..... It is profitable to note that similar arguments were made by the respondents in the case of Kavi Arora (supra), and in that case, while placing reliance on the decision cited by the learned counsel for the respondents, in paragraph No.45, it has been held that the time taken by the Regional Director to take the decision to direct the Registrar of Companies to launch prosecution cannot be excluded for the purpose of computing the limitation. 11. It is to be noted that in the instant case also same inspection report is being referred to. The only distinction between the case of Kavi Arora (supra) and the present one is that in the case of Kavi Arora (supra), the date of filing of the complaint was 18.09.2014 and the offence was punishable up to one year, therefore, the limitation for filing of the complaint was one year. Paragraphs No.51, 53, 54, 56, 63 to 67 of the decision of Kavi Arora (supra) are being reproduced as under: - "51. Thus, the time period taken by the Regional Director to take the decision to direct the Registrar of Companies to launch prosecution cannot be excluded for the purpose of computing the period of limitation as both the Regional Director, i.e. the Cen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... behalf, both the Central Government as well as the Registrar of Companies were competent to prosecute the Company as contemplated under Section 621(1) of the Act, but instead they slept over it and the complaint was filed by the Respondents only on 18th September, 2014 which was beyond the prescribed period of limitation. 57. In response to the same the petitioners have placed reliance on Webcity Infosys Ltd. v. Registrar of Companies (Delhi and Haryana) (supra) wherein it has been held by the Court that "Limitation has to commence when actionable knowledge is gained by the competent authority". The Competent Authority in the present case includes the ROC and admittedly actionable knowledge was gained by the ROC on 24th June, 2013 when the Director (Inspection & Investigation) submitted its report to both the Regional Director (Central Government) as well as the ROC. 63. The said plea of the petitioners is correct in law as an offence under Section 211 is not a continuing offence and is complete the moment the Balance Sheet in question is issued by the Company unlike offences under Section 113, 162 and 168 of the Companies Act, 1956 which are continuing in nature. Reliance is ....