Anil Dev Singh, J.
1. These revisions are directed against the order of the learned Additional Sessions Judge dated January 30, 1996, whereby the appeals against the order dated July 17, 1995, of the Additional Chief Metropolitan Magistrate, New Delhi, convicting the revisionist under Section 162 read with Section 220 of the Companies Act, 1956 (for short 'the Act'), were dismissed.
2. The Registrar of Companies filed complaints against the petitioner, Shri Moti Lal Bhatia and Smt. Suman Bhatia, directors of Nirman Chit Fund Private Ltd. in the court of the Additional Chief Metropolitan Magistrate, Delhi, on June 11, 1992, under Sections 159 and 162 of the Act on the ground that the petitioner and the above said two others did not submit the annual returns and balance-sheets of the company, Nirman Chit Fund Pvt. Ltd., for the years 1987-88, 1988-89, 1989-90 and 1990-91 within the prescribed period thus flouting the provisions of Sections 159, 220 read with Section 162 of the Act. The learned Additional Chief Metropolitan Magistrate came to the conclusion that it was the petitioner alone who was liable for the default in submitting the annual returns and balance-sheets for the years 1987-88, 1988-89 and 1989-90. In respect of the year 1990-91, Shri Moti Lal Bhatia and Smt. Suman Bhatia were held liable for the default in filing the annual return and balance-sheet. Accordingly, the petitioner was sentenced to pay Rs. 2,000 as fine in each of the six cases relating to the years 1987-88, 1988-89 and 1989-90. In default of payment of fine, she was required to undergo simple imprisonment for one month in each case. The accused, Moti Lal Bhatia and Suman Bhatia, were to pay a fine of Rs. 1,000 each in the two cases relating to the year 1990-91. In default of payment of fine, they were required to undergo simple imprisonment for one month each. The petitioner not being satisfied with the order passed by the learned Additional Chief Metropolitan Magistrate, filed six appeals before the learned Additional Sessions Judge. As already pointed out these appeals came to be dismissed on January 30, 1996.
3. Section 159 of the Act provides that every company having a share capital shall, within 60 days from the date on which each of the annual general meetings is held, prepare and file with the Registrar an annual return containing the specified particulars. Section 162 of the Act, inter alia, lays down that if a company fails to comply with Section 159 of the Act, the company and every officer of the company who is in default shall be punishable with fine which may extend to Rs. 50 for every day during which the default continued. Section 220 of the Act lays down that three copies of the balance-sheet and profit and loss account shall be filed by the company within 30 days from the date on which the balance-sheet and the profit and loss account were laid at the annual general meeting of the company. Sub-section (3) of Section 220 provides that if default is made in complying with the requirement 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 Section 159. In the event of non-compliance with Sections 159 and 220 of the Act, the company and every officer thereof who is in default are punishable with a fine which could extend to Rs. 60 for each day during which the default continues under Section 162 of the Act.
4. The main contention of the petitioner is that the complaints against the petitioner were barred by limitation. It is pointed out that the petitioner had resigned as a director of the company on December 12, 1990, while the complaints were filed on June 11, 1992. It was canvassed that the offences under Sections 159 and 220 of the Act being punishable with fine, cognizance of the complaints after a period of six months from the commission of the offence as provided in Section 468 of the Code of Criminal Procedure (for short 'the Code'), could not be taken by the trial court. It was further submitted that after the petitioner resigned as a director of the company, she could not have complied with the provisions of Sections 159 and 220 of the Act as she ceased to be an 'officer in default' as contemplated by Section 162 read with Section 5 of the Act.
5. On the other hand, learned counsel for the respondent submitted that the offences under Sections 159 and 220 of the Act are continuing offences and as such Section 468 of the Code was not attracted. It was also submitted that even after the petitioner resigned as a director of the company, she remained an 'officer in default' as envisaged by Section 5 of the Act.
6. In so far as the first question is concerned, this court in Kuldip Singh v. State [1988] DLT 11 ; [1990] 68 Comp Cas 625 held that considering the objects of the provisions of Sections 159 and 220 read with Section 162 of the Act and the language used therein, the offences of which the accused were charged, namely, non-filing of annual return, balance-sheet and profit and loss account within the period prescribed, were continuing offences, and, thereforee, the period of limitation provided by Section 468 of the Code did not have any application. It was further held that the said offences will be governed by Section 472 of the Code, according to which a fresh period of limitation shall begin to run at every moment of time during which the offences continue. This court considered the following three decisions of the Supreme Court, which dealt with the question as to whether a particular offence was a continuing offence or not :
1. State of Bihar v. Deokaran Nenshi, : 1973CriLJ347
2. Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 and
3. Maya Rani Punj v. CIT : [1986]157ITR330(SC) .
7. In State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , the Supreme Court was of the view that when law requires submission of a return within a certain period and there is a failure to do so, such non-compliance is ordinarily complete on the expiry of the period and is not a continuing offence. This was a case under Section 66 of the Mines Act, 1952, which provides for filing of an annual return before the appropriate authority by owner, manager, etc., of the mine within the time prescribed. Since there was no provision postulating that the offence continues until the requirement of the statute is complied with, failure to file the return within the prescribed period was held not to be a continuing offence. As a sequilur, the inference which must be drawn from the decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , is that if the relevant law has not only made the default punishable as an offence, but has further provided that the penal liability thereforee would also continue until the default is removed and the continuance of the default is also made punishable so long as it continues, the continuance of the default would be a continuing offence. In Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , the Supreme Court, while construing the provisions of Section 14(2A) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, considered the question whether failure to pay the employees' contribution to the provident fund within the time prescribed thereforee was a continuing offence. The Supreme Court viewed the offence of non-payment of the employer's contribution to the provident fund to be a continuing offence. The Supreme Court distinguished its earlier decision in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , as in that case there was no provision which laid down that the owner of a mine would be guilty of an offence, if he continued to work the mine without furnishing the return. The Supreme Court in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , observed that the question whether a particular offence was a continuing offence depends upon the language of the statute which creates the offence, the nature of the offence and the purpose which was intended to be achieved by constituting the particular act as an offence. The Supreme Court in this regard observed as follows (page 341 of 157 ITR) :
'The imposition of penalty not confined to the first default, but with reference to the continued default is obviously on the footing that non-compliance with the obligation of making return is an infraction as long as the default continued. Without sanction of law, no penalty is impossible with reference to the defaulting conduct. The position that penalty is imposable not only for the first default, but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the asses-see does not comply with the requirements of law, he continues to be guilty of the infraction and exposes himself to the penalty provided by law.'
8. The Supreme Court, while taking the above view overruled its earlier decision in CWT v. Suresh Seth : [1981]129ITR328(SC) , where it had taken the view that the provision of imposition of penalty for failure to file the wealth-tax return under the Wealth-tax Act with reference to every month during which the default continued did not have the effect of making the default a continuing one.
9. In the instant case, there are clear indications in Sections 162 and 220(3) of the Act that the Legislature viewed the default in filing the annual return and balance-sheets as a continuing offence.
10. The Calcutta High Court in Luxmi Printing Works Ltd. v. Assistant Registrar of Companies [1990] 69 Comp Cas 442 questioned its earlier decision in National Cotton Mills v. Assistant Registrar of Companies [1984] 56 Comp Cas 222, where it had taken the view that an offence under Section 162(1) of the Companies Act was not a continuing offence within the meaning of Section 472 of the Code, and, thereforee, a complaint would be time barred under Section 168(2) of the Code, if filed beyond the period prescribed thereunder. It was noted by the Calcutta High Court in Luxmi Printing Works Ltd. v. Assistant Registrar of Companies [1990] 69 Comp Cas 442 that the earlier Bench decisions had mainly relied upon the decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , and two earlier Division Bench decisions of the Calcutta High Court in Wire Machinery . v. State [1978] Cal HN 293 ; [1979] 49 Comp Cas 197 and Krishna Kumar Dalmia v. State [1981] 2 Cal HN 301, both being decisions under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Commenting upon the decision in National Cotton Mills v. Assistant Registrar of Companies : 87CWN1038 , the Division Bench in Luxmi Printing Works Ltd. v. Assistant Registrar of Companies : 94CWN412 observed as follows (page 448 of 69 Comp Cas) :
'We would like to think that the offences punishable under Section 162(1) and also Section 220(3) of the Companies Act squarely come within this principle, as they arise out of failure to obey or comply with the provisions of Sections 159, 160, 161 and 220(1) requiring submission of returns, balance-sheet and other documents and which, as the penal provisions thereforee in Section 162(1) provide in express terms, involve a penalty of daily fine the liability for which continues for every day till the default continues and the requirement is not obeyed or complied with. As already pointed out, the offence of failure to submit return in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 was held not to be a continuing offence in the absence of analogous provisions in the Mines Act, 1952, and the regulations there under and the later Supreme Court decision in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , has accordingly ruled that the decision in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 'must be confined' to such cases only, that is, cases where such default in submitting the return has been made penal, but the penal liability has not been continued so long as the default continues.
The observations in the later Supreme Court decision in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , would a fortiori make the offence punishable under Section 162(1) or Section 220(3) a continuing offence. As already indicated, that was a decision under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the provisions whereof require the employers to deposit the contribution within the period prescribed, but the penal Section does not expressly provide that non-compliance therewith would render the employer liable to any continued or further penalty until payment. But still the Supreme Court observed thus : The appellants were unquestionably liable to pay their contribution to the provident fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence.'
11. We have no manner of doubt that these observations would apply to an offence under Section 162(1) or Section 220(3) with all their rigour. True, late submission of the documents beyond the period prescribed would not absolve the offenders of their initial guilt under those sections, but would at once snap the recurrence of the offence made punishable from day-to-day. In view of the principle enunciated in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , and amplified further in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , we would have to hold the offences under Section 162{1) and Section 220(3) to be continuing offences and would hold further, and this we say with all respect, that the decision of the Division Bench in National Cotton Mills v. Assistant Registrar of Companies : 87CWN1038 can no longer be taken to be good law, particularly in view of the earlier Division Bench decisions in Wire Machinery . v. State and in Krishna Kumar Dalmia v. State [1981] 2 Cal HN 301, relied on in National Cotton Mills v. Assistant Registrar of Companies : 87CWN1038 having been overturned by the Supreme Court and the earlier decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, : 1973CriLJ347 , referred to therein, having been duly explained and distinguished by the Supreme Court in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 . The Division Bench in National Cotton Mills v. Assistant Registrar of Companies : 87CWN1038 could not obviously consider the Supreme Court decision in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 , as the latter was decided later.'
12. Learned counsel for the petitioner relied upon certain authorities to contend that the offence contemplated under Sections 159 and 220 read with Section 162 of the Act was not a continuing offence. It is not necessary to refer to the decision cited by the learned counsel as they run contrary to the decision of the Supreme Court in Bhagirath Kanoria v. State of Madhya Pradesh, : [1985]1SCR626 and the decision of this court in Kuldip Singh v. State [1988] DLT 11 ; [1990] 68 Comp Cas 625.
13. Accordingly, I hold that the offences under Sections 159 and 220 read with Section 162 of the Act are continuing offences within the meaning of Section 472 and Section 468 of the Code, is not attracted.
14. However, the question which still remains to be decided is whether the petitioner could be convicted of the offences under Sections 159 and 220 of the Act as she had resigned as director of the company on December 12, 1990. It was urged that the petitioner after the resignation would no longer come under the expression 'officer who is in default' as contemplated by Sections 5, 159 and 220 of the Act. A reading of Section 5 shows that even after the retirement of the petitioner, she would come under the definition of an officer in default. If it is not held so any managing director, director, manager or secretary would escape the provisions of Sections 159 and 220 of the Act by simply tendering their resignation as the office bearer of the company. This would defeat the provisions of Sections 159 and 220 of the Act. The trial court, however, must consider the question whether after retirement of a managing director, director of secretary of a company, the records of the company would be available to him or her for filing a return. It was not urged by the petitioner before the trial court and the first appellate court that the records of the company were not available with her which prevents her from filing the annual returns and the balance-sheets for the years 1987-88, 1988-89, 1989-90 and 1990-91. This point not having been taken, cannot be gone into at this stage.
15. For the foregoing reasons, I find no merit in the revisions and the same are dismissed.