Mridula Mishra, J.
1. The application has been filed by the petitioners for quashing the criminal prosecution in Special Case No. 799 (M)/84 including the order dated 12-12-2002, passed by the Special Judge, Economic Offences, Patna, refusing to drop the criminal prosecution.
2. Petitioner No. 1 namely Punyark Credit & Investment Private Limited is a registered Private Limited Company with the office of the Registrar of Companies, Bihar and Jharkhand. The petitioner Nos. 2 and 3 are the Directors of the Company petitioner No. 1. Case No. 799M/84 was filed by the Registrar of the Companies against the petitioners on 26-7-1984 before the Court, Economic Offences, Patna with the allegation that according to the provisions of Section 220 of the Companies Act, 1956, the Company and its directors are under the statutory obligation to file with the Registrar of the Companies three copies of the balance sheet and profit and loss account in prescribed f6rm duly placed in the annual general meeting within 30 days of the date of the annual general meeting and in case no annual general meeting was held within 30 days of the due date of the annual general meeting. The company was required to file the balance sheet and profit and loss account of the company as on 31-12-1980 and not later on 30-6-1981, i.e., within six months of the close of the financial year. The company and its officers are in default as they did not file the balance sheet of profit and loss account of the company before the Registrar of the Companies as such non-compliance and failure to file the said balance sheet under Section 220(1) of the Companies Act, 1956 they have committed offence under Section 220(1) of the Companies Act. In the petition it has also been stated that the said contravention of Section 220(1) of the Companies Act, 1956 is a continuing offence. As such the accused Nos. 1 to 3 are liable for punishment under Section 220(3), read with Section 612(1) of the Companies Act, 1956.
3. The court of Special Judge, Economic Offences, Patna on the same day took cognizance of the offence under Section 220(3) of the Companies Act. The case thereafter proceeded and one witness was also examined on behalf of the complainant. The statement of the accused persons under Section 313 Cr. P.C. was also recorded on 15-9-2001, but it was not signed by the Presiding Officer, as such to remove the defect the accused persons were again directed to be present in court for recording statement under Section 313 Cr. P.C. The case was lingering for final argument since 15-10-2001.
4. On 7-9-2002 at the fag of the present case the accused persons filed two applications before the Special Judge, Economic Offences. In the petition it is stated that the complaint of this case has been filed after more than two years of the commission of the alleged offence so it is barred under Section 468(2) Cr. P.C. as the period of limitation prescribed under Section 468(2)(a) Cr. P.C. is six months only if the punishment for the alleged offence is only fine. Under Section 220(3) of the Companies Act the punishment awarded is only fine. It has also been stated that the complainant has not filed any petition for condoning the delay in filing of the complaint as such the order taking cognizance without condoning the delay is barred under the provisions of Section 468 Cr. P.C.
5. The opposite party filed its rejoinder to this petition and the Special Judge, Economic offences, after hearing both the parties rejected this petition by his order dated 12-12-2002 with the finding that the accused petitioners have filed applications at the fag end of the present case with a view only to delay the disposal of the present case. Such petitions should have been filed at the earlier stage of this case.
6. Against the order refusing to drop the proceeding under the provision of Section 468(1) Cr. P.C. the present application has been filed by the petitioners. The petitioners in his application has challenged the impugned order stating that the Registrar for the Companies, Bihar, Patna has filed two complaints against the petitioners on 26-7-1984 under Section 220(3) of the Companies Act for non-compliance of the requirement under Section 220(1) of the Act to file the balance sheet and profit and loss account with the Registrar within 30 days of such general meeting of the company. On the aforesaid complaint two cases were registered as Special Case Nos. 797(M)/84 and 799(M) of 1984 on the same day. The complainant Registrar of the Company filed another three complaint petitions under Section 162(1) of the Companies Act against the petitioners, which were registered as Special Case Nos. 794, 795 and 796 of 1984 for non-compliance of the provisions for filing report within sixty days of annual general meeting under Section 169 of the Companies Act. In all the aforesaid five cases cognizance has been taken much after the limitation prescribed under Section 468 Cr. P.C. without condoning the delay. As the complainant had not filed any petition for condoning the delay and also because the offence under Sections 159 and 220(1) of the Companies Act are not continuing offence, the limitation prescribed under Section 468 Cr. P.C. is applicable in the present case.
7. The opposite party No. 2, i.e., the Registrar of the Companies, Bihar has filed a counter affidavit controverting the statement made by the petitioners in his petition. It is stated in the counter affidavit that the petitioners' company is required to file balance sheet and annual return every year irrespective of the fact that the company has not carried out any business and in default the petitioners' company and its directors are punishable with fine as prescribed in the Act for every day during which the default continues. The offence committed by the petitioners' company and its Director are continuing offence and liability exist under Section 162 of the Companies Act, 1956 till compliance is made. It has also been stated that the petitioners have filed only one application against the order passed in six different cases, which is not maintainable.
8. Section 162(1) of the Companies Act reads if a company fails to comply with any provisions contained in Sections 159, 160 or 161, the Company and every officer of the company who is in default shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues.
9. Section 220(3) of the Companies Act reads if default is made in complying with the requirements of Sub-sections (1) and (2), the Company, and every officer of the company who is in default shall be liable to the like punishment as is provided by Section 162 for a default in complying with the provisions of Sections 159, 160 or 161.
10. From the reading of these two sections now the question arises whether offence is a continuing offence and whether the provisions of Section 468(1) Cr. P.C. will be applicable in the present case. The petitioners relied on two decisions: firstly in the case of K.K. Mehra v. Registrar of companies , and secondly the case of State of Punjab v. Sarwan Singh : 1981CriLJ722 . In the ease of K.K. Mehra (supra) the Hon'ble single Judge of Delhi High Court following the dictum of the Supreme Court in CWT v. Suresh Seth : [1981]129ITR328(SC) held that the provisions extending the fine for every day of default after the first indicate only the multiplier to be adopted in determining the quantum of penalty and do not have the effect of making the defaults in question continuing ones. But Suresh Seth's case (supra) did not find approval in the subsequent Supreme Court decision in the case of Smt. Maya Rani Punj v. CIT : [1986]157ITR330(SC) and another Supreme Court decision in Bhagirath Kanoria v. State of Madhya Pradesh : [1985]1SCR626 . The Supreme Court in Bhagirath Kanoria's case (supra) has laid down a guideline to determine the question, whether a particular offence is a continuing offence. In para 19 of the reported judgment, it has been stated that the nature of the offence whether it is continuing must be determined from (a) the language of the statute which creates that offence, (b) the nature of the offence, and (c) above all the purpose which is intended to be achieved by constituting a particular act as an offence. Examining with the help of these guidelines on the fact of the case, the Supreme Court has held that the offence of non-payment of contribution by the employer to the provident fund is a continuing offence.
11. In later Supreme Court ease Maya Rani Punj's case (supra), the Supreme Court held that in default of non-filing of the return within the time stipulated by law was under consideration, and the Supreme Court did not favour its earlier decision in CWT v. Suresh Seth : [1981]129ITR328(SC)
12. Applying the norms and guidelines given by the Supreme Court in Bhagirath Kanoria's case and all the more looking to the purpose which has been intended to be achieved by constituting a particular act as the offence, it is held that the default in filing the balance sheet of the profit and loss of the Companies within the prescribed statutory period was a continuing offence.
13. The Patna High Court in a Full Bench decision in the case of Ram Kripal Prasad v. State : AIR1986Pat254 , has also held that failure of the employer to deposit the contribution to employees provident fund was a continuing offence. In this Full Bench decision it has also been held that the failure of the employer to deposit the contributions in contravention of paragraphs 38 and 76 of the Employees Provident Fund Scheme, 1952, read with Section 15 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, would be a continuing offence. In this Full Bench it has also been held that even though it is established that the prosecution is beyond the period of limitation and further the delay has not been satisfactorily explained, the court is given power to override if the interest of justice requires the same. In the Full Bench decision it has also been decided that the disputed issues of limitation under Sections 468 and 473 of the Code of Criminal Procedure can appropriately be raised at the earliest as a preliminary issue and it cannot be raised at the fag end of a proceeding.
14. In the instant ease the petitioners have raised the question of limitation at the fag end of the trial when the witness of the complainant was already examined and the statement of the accused was also recorded under Section 313 Cr. P.C. The question of limitation cannot be raised at such a belated stage and it has rightly been decided by the court below that the accused petitioners have raised such question at the fag end of the trial with a view to delay the trial of the case. Regarding the nature of the offence I must say that it has already been decided by the Supreme Court as well as by this Court in a Full Bench Decision that such offences are continuing offence and the plea of limitation under Section 468(1) Cr. P.C. has no application in such cases.
15. In the facts and circumstances of the case this application is dismissed.