Hyderabad Vanaspathi Ltd. and ors. Vs. Registrar of Companies and ors. - Court Judgment

Excerpt:
company - continuing offence - section 614a (2) of companies act, 1956, rules 3 (2), 10 and 11 of companies (acceptance of deposits) rules, 1975 and sections 468 and 472 of criminal procedure code, 1973 - whether non filing of return of deposits by companies under rule 10 is a continuing offence punishable under rule 11 - rule 10 directs every company shall file a return in form annexed to rules furnishing information with registrar on or before 30th june - part b of form provided that particulars of deposits as on 31st march of previous year should mentioned in return - opening balance in next year's return must be deposits made in previous year and process continues - held, contravention under rule 10 is a continuing one as return for next year cannot be filed until return for defaulted year is furnished. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - 2 to 4, who are the directors of the first accused company, have failed to file with him before june 30, 1979. a return of deposits for the year 1978 under rule 10 of the companies (acceptance of deposits) rules, 1975 (hereinafter called 'the deposit rules'), and, therefore, they rendered themselves liable for punishment under rule 11 of the said rules. 100 for failure to file the return of deposit within the prescribed time and a further fine of rs. it is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. ' 12. the supreme court in that case held that regulation 3 read with section 66 of the mines act makes failure to furnish annual returns for the preceding year by the 21st of january of the succeeding year an offence .but regulation 3 does not lay down that the owner ,manager ,etc. 338) :the true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act, the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do the act. breach of a convenient to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children when he is bound to maintain under law and the carrying on the mining operations or the running of a factory without complying with the measure intended for the safety and well-being of workmen many be illustration of continuing breaches or wrongs giving rise to civil or criminal liability ,as the case may be ,de die in diem. ' 14. in that case, the supreme court held that the failure to file a return of wealth-tax under section 14(1) ,on or before the prescribed date ,was not a continuing default and penalty alone has to be computed for that period in accordance with section 18(1)(a) of the wealth-tax act. 524) :the expression language of section 58b(2) goes to indicate that failure or refusal to comply with the terms of the said section creates an offence and continues to be an offence so long as such failure or refusal persists. ratnam pillai, air 1958 ,mad 155, the madras high court has held that the failure to apply for and obtain a licence to run a motor of high horse-power under the factories act, 1948, was a single specified act, which the owner of the factory should have complied with, and his failure to do so was not a continuing act.chennakesav reddy, j.1. the question that arised for consideration in this criminal revision case is, whether the non-filing of a return of deposits by the companies under rule 10 of the companies (acceptance of deposits) rules, 1975, is a continuing offence punishable under rule 11 of the said rules. 2. the registrar of companies, andhra pradesh, hyderabad, filed a complaint before the special judge for economic offences, hyderabad, alleging that the first accused company and accused nos. 2 to 4, who are the directors of the first accused company, have failed to file with him before june 30, 1979. a return of deposits for the year 1978 under rule 10 of the companies (acceptance of deposits) rules, 1975 (hereinafter called 'the deposit rules'), and, therefore, they rendered themselves liable for punishment under rule 11 of the said rules. 3. the accused contended that the complaint filed against them was barred by limitation under section 468, cr. pc. 4. the learned special judge held that the contravention in question was a continuing offence and, therefore, the proceedings were protected by the provisions of section 472, criminal procedure code. consequently, he convicted the accused under rule 11 of the deposits rules and sentenced each of them to pay a fine of rs.200, made up of a fine of rs.100 for failure to file the return of deposit within the prescribed time and a further fine of rs.100 for the period from july 1, 1979, to november 12, 1980, being the date of the filing of the complaint. the special judge further ordered, that on realisation of the fine amount, 2/5th thereof be paid to the complainant towards the cost of the proceedings. the accused were further directed to file a return in the prescribed from duly certified by the auditor of the company for the relevant year within three months from the date of the order, filing which they shall be liable for action under section 614a(2) of the companies act 1956. 5. aggrieved by the said conviction and sentence, the accused have preferred this criminal revision case. the only question that falls for consideration in this case is whether the offence under rule 10 of the deposits rules, is a continuing offence punishable under rule 11. it is, therefore, necessary to read rules 10 and 11 of the deposits rules. 6. rule: 10. return of deposits to be filed with the registrar. 10(1). every company to which these rules apply, shall on or before the 30th day of june of every year, file with the registrar, a return in the form annexed to these rules and furnishing the information contained therein as on the 31st day of march of that year (duly certified by the auditor of the company). (2) a copy of the returns shall also be simultaneously furnished to the reserve bank of india. [notes : 1 the amendment rules 1978 h;ave, with effect fro april 1, 1978, inserted the words 'duly certified by the auditor of the company' at the end of sub-rule(1). the effect of the amendment will be that the return of deposits required to be filed with the registered would now be certified by the company's auditor.] penalty : 11. if a company or any other person contravenes any provisions of these rules for which no punishment is provided in the act, the company and every officer of the company, who is in default or such; other person shall be punishable with fine which may extend to five hundred rupees and where the contravention is a continuing one, with a further fine which may extend to fifty rupees for every day after the first during which the contravention continues.'7. what is a continuing offence is not defined in the criminal procedure code, nor is it defined in the deposits rules , although rule 11 employs the words ' where the contravention is a continuing one.' 8. section 472 , criminal procedure code, provides that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. if the offence is a continuing one, there is unbroken succession and the offence continues to exist. there is nocessation of the offence until the contravention is remedied. 9. in p.r. ajyar's law lexicon, a continuing offence is explained as : ' a transaction or a series of acts constituting an offence set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time may occupy. the expressions 'continuing offence' and 'continuing contravention' must mean the same thing since in each case the offence consists of contravention of certain rules.' 10. according to stround's judicial dictionary, 'continuing offence' meant ' only an offence which is from its nature susceptible of continuance.' 11. in state of bihar v. deokaran nenshi, : 1973crilj347 , the supreme court has explained the meeting of the expression 'continuing offence' thus (at p. 909): ' continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. it is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. on every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. the distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. in the case of a continuing offence, there is thus the ingredient of continuance of the offence, which is absent in the case of an offence which takes place when an act or omission is committed once and for all.'12. the supreme court in that case held that regulation 3 read with section 66 of the mines act makes failure to furnish annual returns for the preceding year by the 21st of january of the succeeding year an offence . but regulation 3 does not lay down that the owner , manager , etc., of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of regulation 3 is complied with. there is nothing in regulation 3 or in any other provision in the act or the regulations which renders the continued non-compliance an offence until its requirement is carried out. 13. in a more recent case, viz., cwt v. suresh seth : [1981]129itr328(sc) , the distinctive nature of a continuing wrong is explained thus (at p. 338) : ' the true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act, the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do the act. breach of a convenient to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children when he is bound to maintain under law and the carrying on the mining operations or the running of a factory without complying with the measure intended for the safety and well-being of workmen many be illustration of continuing breaches or wrongs giving rise to civil or criminal liability , as the case may be , de die in diem.' 14. in that case, the supreme court held that the failure to file a return of wealth-tax under section 14(1) , on or before the prescribed date , was not a continuing default and penalty alone has to be computed for that period in accordance with section 18(1)(a) of the wealth-tax act. 15. in commissioner of wealth-tax v. r.d. chand : [1977]108itr787(ap) this court also has held that 'the default in filing a return before the due date under section 14(1) of the wealth-tax act, 1957, is a completed default and not a continuing default.' 16. in united savings and finance co. p. ltd. v. dy. chief officer , reserve bank of india [1980] 50 comp cas 518 (cal), the calcutta high court has held that the offence under section 58b of the reserve bank of india act, 1934, is a continuing offence and there was no limitation for filing a complaint. their lordships observed (at p. 524) : ' the expression language of section 58b(2) goes to indicate that failure or refusal to comply with the terms of the said section creates an offence and continues to be an offence so long as such failure or refusal persists. in other words, so long as the requirement of the said section is not complied with, the offence continues.' 17. in public prosecutor v. ratnam pillai, air 1958 , mad 155, the madras high court has held that the failure to apply for and obtain a licence to run a motor of high horse-power under the factories act, 1948, was a single specified act, which the owner of the factory should have complied with, and his failure to do so was not a continuing act. 18. the learned counsel for the respondent invited my attention to the decision of the patna high court in state v. kunja behari chandra, : air1954pat371 . wherein it was held that ' not to have constructed the creche as required within the time allowed is a contravention of rule 3(a) and to carry on mining operation without the creche is a continuing contravention of the same rule. section 39, mines act, 1923, provides for punishment for continuing contravention. thus, the contravention of rule 3(a) of the mine creche rules , 1946, by the manager of a mine is a continuing one, and there can be no question of the prosecution being barred under section 42 of the mines act.' 19. this decision was approved by the supreme court in commissioner of wealth-tax v. suresh seth : [1981]129itr328(sc) . 20. from the decisions referred to above, what emerges is that the question , whether a contravention made is a continuing one or a completed one, has to be decided from the very language of the rule contravened. in this case, rule 10 directs that every company to which these rules apply, shall file with the registrar, on or before 30th june, a return in the form annexed to the rules, furnishing the information. part b of the form provided that particulars of deposits as on 31st march of the previous year should be brought forward and mentioned in the return. unless the previous year's balance of deposited is mentioned in the return, the return for the next year cannot be submitted. clause (i) of sub-rule (2) of rule 3 directs that no company shall accept any deposit against unsecurred debenture or any deposit from a shareholder or any deposit guaranteed by any person who, at the time of giving such guarantee is a director of a company, and under the rules, deposits of the kind referred to in rule 3(2)(1) are to be shown in part b of the return filed under rule 10. therefore, the opening balance in the return must be the deposits made in the previous year, and that has to be shown as the opening balance in the return for the next year . thus, the process continues and the company cannot file a complete return for the next year until the return for the year defaulted is furnished. so,the contravention under rule 10 of the deposits rules is a continuing one. rule 11 makes the contravention of any provision of the rules, for which no punishment is provided in the act,punishable under rule 11, and where the contravention is a continuing one, it is made day after the first during which the contravention continues. therefore, the court below rightly held that the contravention continues. therefore, the court below rightly held that the contravention in this case was a continuing one. 21. the conviction and the sentence are, therefore, confirmed and the criminal revision case is dismissed.