R. Aghoramurthy, Registrar of Companies, Bombay Vs. M/s. Bombay Dyeing & Mfg. Co. Ltd. and others
EmailAppeal: Criminal Appeal no. 585 of 1990
Petitioner: R. Aghoramurthy, Registrar of Companies, Bombay
Respondent: M/s. Bombay Dyeing & Mfg. Co. Ltd. and others
Apeal: Criminal Appeal no. 585 of 1990
Judges:
Date of Judgment: Mar 07, 1991
Head Note:
CRIMINAL LAW
Code of Criminal Procedure, 1973:
Section 469(1)(b) – Limitation – Appellant in his notice dated 8.7.1986 mentioned about violation of sections 205 and 211 – Reply of company filed on 29.7.1986 – Subsequently the Department ordred inspection of books of account – Report of Enquiry Officer received on 18.9.1987 – Question as to the determination of date when the offence in question came to the knowledge of the appellant – Held that there were overwhelming materials on record to show that the appellant had the knowledge of the commission of the offence as pointed out supra either on 8th July, 1986 or on 29th July, 1986.
Held:
We do not find any reason to depart from the concurrent findings of fact of both the courts below holding that the appellant had the knowledge of the offence either on 8th July 1986 or at least by 29th July, 1986. We find from the paper-book (page 11) that after receipt of the reply from the Company dated 29th July, 1986 and 16th October, 1986 and after receipt of the report of the Registrar of Companies, the Department of Company Affairs felt that on the basis of the Company’s reply no definite conclusion in regard to its correctness or otherwise could be arrived at and that accordingly an inspection of the books of account under Section 209 A of the Companies Act was necessary. The above averment on the other hand clearly shows that the Registrar of Companies, namely, the complainant had knowledge and even sent a report to the Department. But it was the Department in turn ordered inspection. Therefore, the complainant cannot be heard to say that till the inspection report came he cannot be said to have knowledge of the offence. It must be noted that the “knowledge” as per Section 468 of the Code is that of the complainant; if the Department for its own reasons ordered further investigation by way of inspection etc., that does mean that complainant can be said to have had knowledge only after receipt of the inspection report, namely, after the Department also was satisfied about laying the complaint. We are unable to agree with Mr.Tulsi since there are overwhelming materials on record to show that the appellant had the knowledge of the commission of the offence as pointed out supra either on 8th July, 1986 or on 29th July, 1986. (Paras 9 and 10)
Cases Reffered:
1. Srinivas Gopal v. Union Territory of Arunachal Pradesh, JT 1988 (3) SC, 342 = 1988 (4) SCC 36. (Para 2)
2. State of Punjab v. Sarwan Singh, 1981 (3) SCC 34. (Para 2)
3. P.D. Jambekar v. State of Gujarat, 1973 (2) SCR 714 – Distinguished. (Para 10)
2. State of Punjab v. Sarwan Singh, 1981 (3) SCC 34. (Para 2)
3. P.D. Jambekar v. State of Gujarat, 1973 (2) SCR 714 – Distinguished. (Para 10)
JUDGEMENT:
O R D E R
1. The Sole question that arises for determination in this appeal is as to the date when the offence in question came to the knowledge of the appellant within the ambit of Section 469(1) (b) of the Code of Criminal Procedure (hereinafter mentioned as ‘the Code’). The maximum period of imprisonment provided for the offence, complained of is six months. According to Section 468(2(b) the period of limitation is one year if the offence is punishable for a term not exceeding one year.
2. Fazal Ali,J. speaking for the Bench has explained the object of Section 468 of the Code in the following words in State of Punjab vs. Sarwan Singh (1981) 3 S.C.C.34:
“The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions were 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 statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. 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.”
See also Srinivas Gopal vs. Union Territory of Arunachal Pradesh (1988) 4 S.C.C. 36 at page 40 (now State) wherein the same view is reiterated.
3. As per clause (a) of sub-section (1) of Section 469 of the Code, the period of limitation in relation to an offender has to commence on the date of the offence and under clause (b) of that section the period of limitation has to commence on the first day on which the offence comes to the knowledge of a person aggrieved by the offence or of any police officer whichever is earlier and under clause (c) the period of limitation will commence on the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence whichever is earlier. According to sub-section (2), in computing the said period of limitation, the day from which such period is to be computed should be excluded.
4. While it is the case of the appellant that he had the knowledge of the commission of the offence only on receipt of the report of the Enquiry Officer on 18th September, 1987, the case of the respondents 1 to 15 of whom the 1st respondent is the Company and respondents 2 to 15 were and/or are its Directors, is that the appellant had the knowledge of the commission of offence on 8th July, 1986 when the appellant issued the notice asking for clarification on the Auditors’ Report and Directors’ Report or at any rate on 29th July, 1986 on which date the 1st respondent gave its explanation. Admittedly in none of the complaints it has been averred specifically that on which date the appellant came to know of the commission of the offence but it is in general stated, “The complainant haS filed this complaint within the time” which, in our view, is clouded with misty vagueness.
5. It is relevant to note that the appellant himself in his notice dated 8th July 1986 has stated, “Thus violation of Sections 205 and 211 (true and fair view of loss not shown) are clearly discernible” which version demonstrates that the appellant had the knowledge of the commission of the offence even on 8.7.1986.
6. The trial court while answering this point of limitation has concluded as follows:-
“So the period of limitation continues from 8.7.1986 or 29.7.1986”
7. The High Court before which the order of the Magistrate has been impugned has held thus:
“It is apparent that the complainant came to know of the commission of the offence on 8th july, 1986 or at least on 29th July, 1986 when the accused sent a reply to the Registrar of Companies.”
8. We have heard the learned counsel for both the parties and gone through the entire records particularly Annexures 1 to 3 appended to the appeal and on a meticulous consideration of the submissions of the learned counsel for the parties as well as of the materials placed before us we do not find any reason to depart from the concurrent findings of fact of both the courts below holding that the appellant had the knowledge of the offence either on 8th July 1986 or at least by 29th July, 1986. We find from the paper-book (page 11) that after receipt of the reply from the Company dated 29th July, 1986 and 16th October, 1986 and after receipt of the report of the Registrar of Companies, the Department of Company Affairs felt that on the basis of the Company’s reply no definite conclusion in regard to its correctness or otherwise could be arrived at and that accordingly an inspection of the books of account under Section 209 A of the Companies Act was necessary. The above averment on the other hand clearly shows that the Registrar of Companies, namely, the complainant had knowledge and even sent a report to the Department. But it was the Department in turn ordered inspection. Therefore, the complainant cannot be heard to say that till the inspection report came he cannot be said to have knowledge of the offence. It must be noted that the “knowledge” as per Section 468 of the Code is that of the complainant; if the Department for its own reasons ordered further investigation by way of inspection etc., that does mean that complainant can be said to have had knowledge only after receipt of the inspection report, namely, after the Department also was satisfied about laying the complaint.
9. It is submitted by Mr.Tulsi, learned senior counsel for the appellant, that the appellant had come to know of the commission of offence only on 18th September, 1987 when the report from the Enquiry Officer was received by the appellant and therefore the period of limitation will commence only from that date, namely 18th September 1987 and not from the earlier period, as contended by the learned senior counsel for the respondents 1 to 15. We are unable to agree with Mr.Tulsi since there are overwhelming materials on record to show that the appellant had the knowledge of the commission of the offence as pointed out supra either on 8th July, 1986 or on 29th July, 1986. Two complaints were filed on 10th August, 1988 and one complaint was filed on 10th September, 1988, i.e. clearly after a period of one year. Admittedly the appellant had not approached the Court under Section 473 of the Code for extension of the period of limitation.
10. Secondly Mr.Tulsi relying on a decision of this Court reported in P.D. Jambekar vs. State of Gujarat 19730 2 S.C.R. 714 submitted that the date of the knowledge should be taken from the date of the receipt of the report. After going through that decision we are of the firm view that the said decision will hardly be of any assistance to this case and as such it cannot be availed of by the appellant.
11. For all the reasons stated above we find no reason to dislodge the concurrent finding of the courts below holding that the prosecution is clearly barred by limitation. The result is that the appeal fails and is dismissed as devoid of merits.
1. The Sole question that arises for determination in this appeal is as to the date when the offence in question came to the knowledge of the appellant within the ambit of Section 469(1) (b) of the Code of Criminal Procedure (hereinafter mentioned as ‘the Code’). The maximum period of imprisonment provided for the offence, complained of is six months. According to Section 468(2(b) the period of limitation is one year if the offence is punishable for a term not exceeding one year.
2. Fazal Ali,J. speaking for the Bench has explained the object of Section 468 of the Code in the following words in State of Punjab vs. Sarwan Singh (1981) 3 S.C.C.34:
“The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions were 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 statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. 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.”
See also Srinivas Gopal vs. Union Territory of Arunachal Pradesh (1988) 4 S.C.C. 36 at page 40 (now State) wherein the same view is reiterated.
3. As per clause (a) of sub-section (1) of Section 469 of the Code, the period of limitation in relation to an offender has to commence on the date of the offence and under clause (b) of that section the period of limitation has to commence on the first day on which the offence comes to the knowledge of a person aggrieved by the offence or of any police officer whichever is earlier and under clause (c) the period of limitation will commence on the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence whichever is earlier. According to sub-section (2), in computing the said period of limitation, the day from which such period is to be computed should be excluded.
4. While it is the case of the appellant that he had the knowledge of the commission of the offence only on receipt of the report of the Enquiry Officer on 18th September, 1987, the case of the respondents 1 to 15 of whom the 1st respondent is the Company and respondents 2 to 15 were and/or are its Directors, is that the appellant had the knowledge of the commission of offence on 8th July, 1986 when the appellant issued the notice asking for clarification on the Auditors’ Report and Directors’ Report or at any rate on 29th July, 1986 on which date the 1st respondent gave its explanation. Admittedly in none of the complaints it has been averred specifically that on which date the appellant came to know of the commission of the offence but it is in general stated, “The complainant haS filed this complaint within the time” which, in our view, is clouded with misty vagueness.
5. It is relevant to note that the appellant himself in his notice dated 8th July 1986 has stated, “Thus violation of Sections 205 and 211 (true and fair view of loss not shown) are clearly discernible” which version demonstrates that the appellant had the knowledge of the commission of the offence even on 8.7.1986.
6. The trial court while answering this point of limitation has concluded as follows:-
“So the period of limitation continues from 8.7.1986 or 29.7.1986”
7. The High Court before which the order of the Magistrate has been impugned has held thus:
“It is apparent that the complainant came to know of the commission of the offence on 8th july, 1986 or at least on 29th July, 1986 when the accused sent a reply to the Registrar of Companies.”
8. We have heard the learned counsel for both the parties and gone through the entire records particularly Annexures 1 to 3 appended to the appeal and on a meticulous consideration of the submissions of the learned counsel for the parties as well as of the materials placed before us we do not find any reason to depart from the concurrent findings of fact of both the courts below holding that the appellant had the knowledge of the offence either on 8th July 1986 or at least by 29th July, 1986. We find from the paper-book (page 11) that after receipt of the reply from the Company dated 29th July, 1986 and 16th October, 1986 and after receipt of the report of the Registrar of Companies, the Department of Company Affairs felt that on the basis of the Company’s reply no definite conclusion in regard to its correctness or otherwise could be arrived at and that accordingly an inspection of the books of account under Section 209 A of the Companies Act was necessary. The above averment on the other hand clearly shows that the Registrar of Companies, namely, the complainant had knowledge and even sent a report to the Department. But it was the Department in turn ordered inspection. Therefore, the complainant cannot be heard to say that till the inspection report came he cannot be said to have knowledge of the offence. It must be noted that the “knowledge” as per Section 468 of the Code is that of the complainant; if the Department for its own reasons ordered further investigation by way of inspection etc., that does mean that complainant can be said to have had knowledge only after receipt of the inspection report, namely, after the Department also was satisfied about laying the complaint.
9. It is submitted by Mr.Tulsi, learned senior counsel for the appellant, that the appellant had come to know of the commission of offence only on 18th September, 1987 when the report from the Enquiry Officer was received by the appellant and therefore the period of limitation will commence only from that date, namely 18th September 1987 and not from the earlier period, as contended by the learned senior counsel for the respondents 1 to 15. We are unable to agree with Mr.Tulsi since there are overwhelming materials on record to show that the appellant had the knowledge of the commission of the offence as pointed out supra either on 8th July, 1986 or on 29th July, 1986. Two complaints were filed on 10th August, 1988 and one complaint was filed on 10th September, 1988, i.e. clearly after a period of one year. Admittedly the appellant had not approached the Court under Section 473 of the Code for extension of the period of limitation.
10. Secondly Mr.Tulsi relying on a decision of this Court reported in P.D. Jambekar vs. State of Gujarat 19730 2 S.C.R. 714 submitted that the date of the knowledge should be taken from the date of the receipt of the report. After going through that decision we are of the firm view that the said decision will hardly be of any assistance to this case and as such it cannot be availed of by the appellant.
11. For all the reasons stated above we find no reason to dislodge the concurrent finding of the courts below holding that the prosecution is clearly barred by limitation. The result is that the appeal fails and is dismissed as devoid of merits.
