http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12

PETITIONER:

GOKAK PATEL VOLKART LTD.

Vs.

RESPONDENT:

DUNDAYYA GURUSHIDDAIAH HIREMATH AND ORS.

DATE OF JUDGMENT14/02/1991

BENCH:

SAIKIA, K.N. (J)

BENCH:

SAIKIA, K.N. (J)

PUNCHHI, M.M.

CITATION:

1991 SCR (1) 396 1991 SCC (2) 141

JT 1991 (1) 376 1991 SCALE (1)193

ACT:

Companies Act, 1956-Section 630-Continuing offence-

Construction of-Court's duty-.Legislative intention.

Companies Act,1956-Section 630-"Officer" or "employee"-

Includes past and present officer or employee.

Criminal Procedure Code, 1972-Section 472-"Continuing

offence"-Construction and nature of-Limitation computation.

Companies Act, 1956-Section 630(l)(b)-Non-vacation of

quarters even after retirement-Continuing offence for

the purpose of limitation.

HEADNOTE:

Appellant-Company filed criminal complaints under

Section 630(l)(b), Companies Act and Section 406, IPC

against its employees (the first respondent of each

appeal) as they did not vacate the company quarters

after about six months even after retirement. The

Judicial Magistrate, First Class dismissed the complaints as

the same were not filed within the period of limitation

of six months from the date of retirement of the

Respondents-employees.

The High Court,holding that the offence under Section

630(1) was not a continuing offence, dismissed the Company's

revision petitions.

In the appeal to this Court on the question, whether

the offence under Section 630(l)(b) of the Companies Act

is a continuing offence for the purpose of

limitation, allowing the Appeals of the Appellant-

Company, this Court,

HELD: 1. The beneficent provision contained in s. 630,

no doubt penal, has been purposely enacted by the

legislature with the object of providing a summary procedure

for retrieving the property of the company: (a) where an

officer or employee of a company wrongfully obtains

397

possession of property of the company, or (b) where

having been placed in possession of any such property

during the course of his employment, wrongfully withholds

possession of it after the termination of his

employment. It is the duty of the court to place a

broad and liberal construction on the provision in

furtherence of the object and purpose of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12

legislation which would suppress the mischief and

advance the remedy. [406B-E]

2."Officer" or "employee" in s.630 of the Companies Act

includes both present and past officers and employees.[405B-

C]

3. The concept of continuing offence does not

wipe out the original guilt, but it keeps the

contravention alive day by day. The courts when

confronted with provisions which lay down a rule of

limitation governing prosecutions should give due

weight and consideration to the provisions of s.473 of the

Code which is in the nature of an overriding provision and

according to which, notwithstanding anything contained in

the provisions of Chapter XXXVI of the Code of

Criminal Procedure any court may take cognizance of an

offence after the expiration of a period of limitation,

if, inter alia, it is satisfied that it is necessary to do

so in the interest of justice. [409D-G]

4. The expression `continuing offence' has not

been defined in the Code. The question whether a

particular offence is a 'continuing offence' or not

must,therefore,necessarily depend upon the language of

the statute which creates that offence, the nature of

the offence and the purpose intended to be achieved by

constituting the particular act as an offence. [409F-H]

5.The offence under section 630 is not such as can be

said to have consummated once for all. Wrongful

withholding, or wrongfully obtaining possession and

wrongful application of the company's property, that is,

for purposes other than those expressed or directed

in the articles of the company and authorised by the

Companies Act, can not be said to be terminated by a

single act or fact but would subsist for the Period

until the property in the offender's possession is

delivered up or refunded. It is an offence committed over

a span of time and the last act of the offence will

control the commencement of the period of limitation and

need be alleged. The offence consists of a course of

conduct arising from a singleness of thought, purpose

of refusal to deliver up or refund which May be

deemed a single impulse. Considered from another angle,

it consists of a continuous series of acts which endures

after the period of consummation on refusal to deliver up

or refund the property. It is

398

not an instantaneous offence and limitation begins with the

cessation of the criminal act, i.e., with the delivering up

or refund of the property. It will be a recurring or

continuing offence until the wrongful possession, wrongful

withholding or wrongful application is vacated or put an end

to. The offence continues until the property wrongfully

obtained or wrongfully withheld or knowingly misapplied is

delivered up or refunded to the company. For failure to do

so sub-section (2) prescribes the punishment. [409H-410E]

6. The offence under section 630 of the Companies Act

is not one time but a continuing offence and the period of

limitation must be computed accordingly, and when so done,

the complaints could not be said to have been barred by

limitation. [410D-F]

W.M.I. Cranes Ltd. v. G.G. Advani & Anr., [1984] 1 Kar.

Law Cronicle 462 overruled; Bhagirath Kanoria and Ors. v.

State of Madhya Pradesh with Bahadur Singh v. Provident Fund

Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev

Krishna Sahi v. Shipping Corporation of India Ltd. and Anr.,

[1987] 4 S.C.C. 361; Amrit Lal Chum v. Devoprasad Dutta Roy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12

and Anr. etc., [1988] 2 S.C.R. 783; State of Bihar v.

Deokaran Nenshi, [19731 1 S.C.R. 1004; Bhagirath Kanoria &

Ors. v. State of Madhya Pradesh & Ors., [1985] 1 S.C.R. 626

followed.

Black's Law Dictionary, Eighth Edition, (Special

Deluxe); Salmond and Heuston on the Law of Torts, 19th Edn.

Page 50; Halsbury's Laws of England. 4th Edn. Vol 45, Para

1389-referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.

97, 98, 99 100 & 101 of 1991.

From the Judgment and Order dated 2.12.1989 of

the Karnataka High Court in Criminal R. P. No. 458, 459,

460, 461 and 462 of 1989.

A.S. Bobde, Attorney General, Vinod Bobde and S.

Sukumaran for the Appellant.

G. Ramaswamy, K.N. Nobin Singh and Ms. Lalitha Kaushik

for the Respondents. M.Veerappa for the State of Karnataka.

The Judgment of the Court was delivered by

K.N. SAIKIA, J. Special leaves granted.

399

These five appeals are from as many similar orders of

the High Court of Karnataka at Bangalore dismissing

the appellant company's criminal revision petitions

impugning the respective orders passed by the Judicial

Magistrate First Class, Gokak holding that the

appellants' complaints against the respondents alleging

offence under section 630(l)(b) of the Companies Act by

not vacating the Company's quarters as required by it even

more than six months after retirement of the

respondents, were barred by limitation and the same

could not be taken into consideration.

The first respondent in each of these criminal

appeals was appointed on 1.8.1942, 11.6.1945,

24.11.1939, 1.5.1939 and 23.1.1937, respectively. in the

service of the appellant company and they retired on

14.3.1984, 1.10.1983, 12.2.1984, 4.10.1983 and

27.1.1981, respectively, from the appellant company's

service, whereafter each of them was required to vacate

his company's quarter. Each having declined to vacate the

company's quarter even more than six months after

retirement, despite legal notice, the appellant company

filed a private criminal complaint under s. 630(l)(b)

of the Companies Act, 1956 and s.406 I.P.C. against

each of them, before the Judicial Magistrate First Class,

Gokak and in each case, after inquiry framed charges

for offences under s. 406 I.P.C. and s. 630(l)(b) of

the Companies Act, 1956. The learned Judicial

Magistrate, after prosecution had examined its

witnesses, recorded the statements of all the accused under

s. 313 of the Cr. P.C. and despite finding that the

accused in each case was allotted a quarter by the

company for his use and occupation and each had no

authority to retain possession of the same after he

retired, and that the cause of action in each case arose

when the accused failed to deliver possession of the

quarter to the company, held that the documents

produced by, the company did not disclose anything

regarding the retirement of the accused from the service,

but at the same time he recorded that during the

course of evidence P.W. 1 had deposed that each of

the accused retired from service and immediately

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12

after the retirement failed to redeliver possession of

the company's quarter which attracted s. 630(l)(b)

of the Companies Act and which was punishable only

with fine and the complaint, therefore, ought to have

been filed within six months from the date of

retirement of the accused, and as the complaint was

filed only during the year 1985 it was clearly barred

by limitation, wherefore, ,the complaint could not be

taken into consideration, and consequently, the accused

was to be acquitted. The Company's revision petition

therefrom was dismissed by the High Court holding that

the view taken by the trial Magistrate was plausible

and reasonable as the complaint was filed in each

case

400

beyond six months from the date of the alleged offence and

that the question, of limitation was concluded by a decision

of the same High Court in W.M.I Cranes Ltd. v. G.G. Advani &

Anr., [19841] Kar. Law Cronicle 462 wherein it was held

that the offence under s. 30 (1) of the Companies Act was

not a continuing offence and the decisions of this Court in

Bhagirath Kanoria and Ors. v. State of Madhya Pradesh with

Bahadur Singh v. Provident Fund Inspector & Ors. and Raja

Bahadur Singh v. Provident Fund Inspector and Ors., AIR 1984

SC 1688 would not be of any assistance to the petitioner.

Mr. A.S. Bobde, the learned counsel appearing for the

appellant company, submits that the offence under s.

630(1)(b) of the Companies Act, 1956 is a continuing offence

and the learned courts below erred in holding to the

contrary and dismissing the company's complaints on the

ground of limitation.

Mrs. Lalitha Kaushik, the learned counsel for each of

the first respondent, submits that when the first respondent

upon his retirement failed to vacate and deliver possession

of the company's quarter to the company, the offence must be

taken to have been complete, and thereafter right could

accrue to the first respondent by adverse possession; and

that if this state of affairs continued till completion of

the period of limitation the company's right would be

extinguished. The trial court as well as the High Court,

according to counsel, rightly held that the offence was not

a continuing one.

The only question to be decided in these appeals,

therefore, is whether the offence under s. 630(l)(b) of the

Companies Act is a continuing offence for the purpose of

limitation.

What then is a continuing offence? According to the

Blacks' Law Dictionary, Fifth Edition (Special Deluxe),

'Continuing means "enduring; not terminated by a single act

or fact; subsisting for a definite period or intended to

cover or apply to successive similar obligations or

occurrences." Continuing offence means "type of crime which

is committed over a span of time." As to period of statute

of limitation in a continuing offence, the last act of the

offence controls for commencement of the period. "A

continuing offence, such that only the last act thereof

within the period of the statute of limitations need be

alleged in the indictment or information, is one which may

consist of separate acts or a course of conduct but which

arises from that singleness of thought, purpose or action

which may be deemed a single impulse." So also a 'Continuous

Crime' means "one consisting

401

of a continuous series of acts, which endures after the

period of consummation, as, the offence of carrying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12

concealed weapons. In the case of instantaneous crimes,

the statute of limitation begins to run with the

consummation, while in the case of continuous crimes it only

begins with the cessation of the criminal conduct or act."

The corresponding concept of continuity of a civil

wrong is to be found in the Law of Torts. Trespass to

land in the English Law of Torts (trespass quare

clausum fregit) consists in the act of (1) entering

upon land in the possession of the plaintiff, or (2)

remaining upon such land, or (3) placing or

projecting any object upon it-in each case without

lawful Justification.

Trespass by remaining on land, as we read in Salmond

and Heuston on the Law of Torts, 19th Edn., page

50: "Even a person who has lawfully entered on land

in the possession of another commits a trespass if

he remains there after his right of entry has

ceased. To refuse or omit to leave the plaintiff's

land or vehicle is as much a trespass as to enter

originally without right. Thus any person who is

present by the leave and licence of the occupier may,

as a general rule, when the licence has been properly

terminated, be sued or ejected as a trespasser, if

after request and after the lapse of a reasonable

time he fails to leave the premises."

Trespass in Law of Torts may be a continuing

one. The authors write: "That trespass by way of

personal entry is a continuing injury, lasting as

long as the personal presence of the wrongdoer, and

giving rise to actions de die in diem so long as it lasts,

is sufficiently obvious. It is well settled, however,

that the same characteristic belongs in law even to

those trespasses which consist in placing things

upon the plaintiff's land. Such a trespass continues

until it has been abated by the removal of the

thing which is thus trespassing; successive actions

will lie from day to day until it is so removed:

and in each action damages (unless awarded in lieu of

an injunction) are assessed only up to the date of

the action. Whether this doctrine is either logical

or convenient may be a question, but it has been

repeatedly decided to be the law."

Again if the entry was lawful but is

subsequently abused and continued after the

permission is determined the trespass may be ab

initio. In 1610 six carpenters entered the Queen's

Head Inn, Cripplegate, and consumed a quart of wine

(7d.) and some bread (1d.), for which they refused

to pay. The question for the court was whether

402

their non-payment made the entry tortious, so as to enable

them to be sued in trespass quare clausum fregit. The court

held that: "When entry, authority or licence is given to any

one by the law, and he doth abuse it, he shall be a

trespasser ab initio," but that the defendants were not

liable as their non-payment did not constitute a trespass.

The rule is that the authority, having been abused by doing

a wrongful act under cover of it, is cancelled

retrospectively so that the exercise of it becomes

actionable as a trespass.

In Halsbury's Laws of England, 4th Edn. Vol. 45 para

1389 it is said:

"If a person enters on the land of another

under an authority given him by law, and, while

there, abuses the authority by an act which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12

amounts to a trespass, he becomes a trespasser ab

initio, and may be sued as if his original entry

were unlawful. Instances of any entry under the

authority of the law are the entry of a customer

into a common inn, of a reversioner to see if

waste has been done, or of a commoner to see his

cattle.

To make a person a trespasser ab initio there

must be a wrongful act committed; a mere

nonfeasance is not enough."

Against the above background, we may now examine the

relevant provision of law, keeping in mind that Some of the

Torts have counterparts in Criminal law in India.

Section 441 of the Indian Penal Code defines Criminal

trespass as follows:

"Whoever enters into or upon property in the

possession of another with intent to commit an

offence or to intimidate, insult or annoy any

person in possession of such property, or having

lawfully entered into or upon such property,

unlawfully remains there with intent thereby to

intimidate, insult or annoy any such person, or

with intent to commit an offence, is said to

commit 'criminal trespass'."

House trespass is punishable under section 448 of the Indian

Penal Code. It is significant that when entry into or upon

property in possession of another is lawful then unlawfully

remaining upon such property

403

with the object Of intimidating,insulting or annoying

the person in possession of the property would be

criminal trespass. The offence would be continuing so

long as the trespass is not lifted or vacated and

intimidation, insult or annoyance of the person legally in

possession of the property is not stopped. The authors of

the Code had the following words to say:

"We have given the name of trespass to

every usurpation,however slight, of dominion

over property. We do not propose to make

trespass, as such, an offence, except when

it is committed in order to the commission of

some offence injurious to some person

interested in the property on which the

trespass is committed, or for the purpose of

causing annoyance to such a person. Even

then we propose to visit it with a light

punishment, unless it be attended with

aggravating circumstances.

These aggravating circumstances are of two

sorts. Criminal trespass may be aggravated by the

way in which it is committed. It may also be

aggravated by the end for which it is committed."

Section 630 of the Companies Act reads as under:

"Penalty for wrongful withholding of property.

(1) If any officer or employee of a company-

(a) wrongfully obtains possession of any

property of a company or

(b) having any such property in his possession,

wrongfully withholds it or knowingly applies it to

purposes other than those expressed or directed in

the articles and authorised by this Act;

he shall, on the complaint of the company or any

creditor or contributory thereof, be punishable

with fine which may extend to one thousand rupees.

(2) The Court trying the offence may also order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12

such officer or employee to deliver up or refund,

within a time to be fixed by the Court, any such

property wrongfully

404

obtained or wrongfully withheld or knowingly

misapplied,or in default, to suffer imprisonment

for a term which may extend to two year."

Thus, both wrongfully obtaining and wrongfully withholding

have been made offence punishable under sub-sec. (1). Under

sub-sec. (2) knowingly misapplication has also been

envisaged. The offence continues until the officer or

employee delivers up or refunds any such property if ordered

by the court to do so within a time fixed by the Court, and

in default to suffer the prescribed imprisonment. The idea

of a continuing offence is implied in sub-section (2).

Section 468 of the Criminal Procedure Code says:

"Bar to taking cognizance after lapse of the

period of limitation-

(1) Except as otherwise provided elsewhere in

this Code, no Court shall take cognizance of an

offence of the category specified in sub-

section (2), after the expiry of the period of

limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with

fine only;

(b) one year, if the offence is punishable with

imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable

with imprisonment for a term exceeding one year

but not exceeding three years.

(3) For the purposes of this section, the period

of limitation, in relation to offences which may

be tried together, shall be determined with

reference to the offence which is punishable with

the more severe punishment or, as the case may be,

the most severe punishment."

The parties have not disputed that this case attracted

s. 468(1) and (2)(a). Regarding the fact of the first

respondent having retired from service though the trial

Magistrate observed that the document did not specifically

state that the first respondent retired, when after

405

referring to oral evidence the cause of action under s.

630(l)(b) was held to have arisen on the first respondent's

failure to vacate and deliver possession of the company's

quarter and that the period of limitation ran therefrom

tantamounted to finding that the first respondent did

retire.

"Officer" or "employee" in s. 630 of the Companies Act

includes both present and past officers and employees. In

Baldev Krishna Sahi v. Shipping Corporation of India Ltd.

and Anr., [1987] 4 SCC 361 at paragraph 8 of the report this

Court said:

"Section 630 of the Companies Act which

makes the wrongful withholding of any property

of a company by an officer or employee of

the company a penal offence, is typical of

the economy of language which is

characteristic of the draughtsman of the Act. The

section is in two parts. Sub-section (1) by

clauses (a) and (b) creates two distinct and

separate offences. First of these is the one

contemplated by clause (a), namely, where an

officer or employee of a company wrongfully

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12

obtains possession of any property of the

company during the course of his employment,

to which he is not entitled. Normally, it is only

the present officers and employees who can

secure possession of any property of a company.

It is also possible for such an officer or

employee after termination of his employment

to wrongfully take away possession of any such

property. This is the function of clause (a)

and although it primarily refers to the existing

officers and employees, it may also take in

roast officers and employees. In contrast,

clause (b) contemplates a case where an

officer or employee of a company having any

property of a company in his possession

wrongfully withholds it or knowingly applies it

to purposes other than those expressed or

directed in the articles and authorised by

the Act. It may well be that an officer or

employee may have lawfully obtained

possession of any such property during the

course of his employment but wrongfully

withholds it after the termination of his

employment. That appears to be one of the

functions of clause (b). It would be noticed

that clause (b) also makes it an offence if any

officer or employee of a company having any

property of the company in his possession

knowingly applies it to purposes other than

those expressed or directed in the articles

and authorised by the Act. That would

primarily

406

apply to the present officers and employees and

may also include past officers and employees.

There is therefore no warrant to give a

restrictive meaning to the term 'officer or

employee' appearing in sub-section ( 1) of section

630 of the Act. It is quite evident that clauses

(a) and (b) are separated by the word 'or' and

therefore are clearly disjunctive."

This Court also observed at paragraph 7 of the report

that the beneficent provision contained in s. 630, no doubt

penal, has been purposely enacted by the legislature with

the object of providing a summary procedure for retrieving

the property of the company (a) where an officer or employee

of a company wrongfully obtains possession of property of

the company, or (b) where having been placed in possession

of any such property during the course of his employment,

wrongfully withholds possession of it after the termination

of his employment. It is the duty of the court to place a

broad and liberal construction on the provision in

furtherence of the object and purpose of the legislation

which would suppress the mischief and advance the remedy.

"It is the duty of the court to place a broad and liberal

construction on the provision in furtherence of the object

and purpose of the legislation which would suppress the

mischief and advance the remedy.

As was reiterated in Amrit Lal Chum v. Devoprasad

Dutta. Roy and Anr. etc., reported in [1988] 2 SCR 783 that

"s. 630 of the Companies Act 1956 plainly makes it an

offence if an officer or employee of a company who was

permitted to use the property of the company during his

employment, wrongfully retains or occupies the same after

the termination of his employment. It is the wrongful

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12

withholding of such property, meaning the property of the

company after the termination of the employment, which is an

offence under s. 630(1) of the Act." What then is the nature

of this offence. The question then is whether it is a

continuing offence. According to Black's Law Dictionary

Revised Fourth Edition, continuing offence means a

transaction or a series of acts set on foot by a single

impulse, and operated by an unintermittent force, no matter

how long a time it may occupy. In State of Bihar v.

Deokaran Nenshi, [1973] 1 SCR 1004, the question was whether

the failure to furnish returns on the part of the owner of a

stone quarry under regulation 3 of the Indian Metalliferrous

Mines Regulations, 1926 even after warning from the Chief

Inspector was a continuing offences Section 79 of the Mines

Act, 1952 which provided that no Court shall take cognizance

of an offence under the Act unless a complaint was made

within six months from the date of the offence

407

and the explanation to the section provided that if

the offence in question was a continuing offence, the

period of limitation shall be computed wherefore to every

part of the time during which the said offence

continued Shelat, J. for the court observed:

"A 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."

Their Lordships referred to English cases Best v.

Butler and Fitz-gibbon, [1932] 2 KB 108; Verney v.

Mark Fletcher and Sons Ltd., [1909] 1 KB-444; Rex v.

Yalore, [1908] 2 KB-237 and The London County Council

v. Worley, [1894] 2 QB 826. In Best v. Butler and

Fitzgibbon (supra) in England, the Trade Union Act, 1871 by

s. 12 provided that if any officer, member or other

person being or representing himself to be a member of a

trade union, by false representation or imposition

obtained possession of any moneys, books etc. of such

trade union, or, having the same in his possession

wilfully withheld or fraudulently misapplied the same, a

court of summary jurisdiction would order such person to

be imprisoned. The offence of withholding the money

referred to in this section was held to be a continuing

offence, presumably because every day that the moneys

were wilfully withheld an offence within the meaning of

S. 12 was committed. In Verney's case (supra) Section

10(1) of the Factory and Workshop Act, 1901 inter alia

provided that every fly-wheel directly connected with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12

steam, water or other mechanical power must be securely

fenced. Its sub-section (2) provided that a factory in

which there was contravention of the section would be

deemed not to be kept in conformity with the Act.

Section 135 provided penalty for an occupier of a factory

408

or workshop if he failed to keep the factory or workshop in

conformity with the Act. Section 146 provided that

information for he offence under s. 135 shall be laid within

three months after the date at which the offence came to the

knowledge of the inspector for the district within which the

offence was charged to have been committed. The contention

was that in May 1905 and again in March 1908 the fly-wheel

was kept unfenced to the knowledge of the Inspector and yet

the information was not laid until July 22, 1908. The

information, however, stated that the fly-wheel was unfenced

on July 5, 1908, and that was the offence charged. It was

held that the breach of s. 10 was a continuing breach on

July 10, 1908, and therefore the information was in time.

The offence under s. 135 read with s. 10 consisted in

failing to keep the factory in conformity with the Act.

Every day that the flywheel remained unfenced, the factory

was kept not in conformity with the Act, and therefore, the

failure continued to be an offence. Hence the offence

defined in s. 10 was a continuing offence. In London County

Council (supra) s. 85 of the Metropolis Management Amendment

Act, 1852 prohibited the erection of a building on the side

of a new street of less than fifty feet in width, which

shall exceed in height his distance from the front of the

building on the opposite side of the street without the

consent of the London County Council and imposed, penalties

for offences against the Act and a further penalty for every

day during which such offence should continue after notice

from the County Council. The Court construed s. 85 to have

laid down two offences; (1) building to a prohibited height,

and (2) continuing such a structure already built after

receiving a notice from the County Council. The latter

offence was a continuing offence applying to any one who was

guilty of continuing the building at the prohibited height

after notice from the County Council.

State of Bihar v. Deokaran Nenshi, (supra) was

explained by this Court in Bhagirath Kanoria & Ors. v. State

of Madhya Pradesh & Ors., [1985] 1 SCR 626. Therein, the

Provident Fund Inspector filed complaints against the

Directors, the Factory Manager and the respondent company

charging them with non-payment of employer's contribution

under the Employees' Provident Fund and Family Pension Fund

Act, 19 of 1952, from February 1970 to June 1971. At the

trial the accused contended that since the limitation

prescribed by s. 468 of the Code of Criminal Procedure, 1973

had expired before the filing of the complaints, the Court

had no jurisdiction to take cognizance of the complaints.

The Trial Court having held that the offences of which the

accused were charged were continuing offences and,

therefore, no question of limitation could arise, and that

order having been upheld

409

by the High Court in revision, the Directors in appeal to

this Court contended that the offence of non-payment of

the employer's contribution could be committed once and

for all on the expiry of 15 days after the close of every

month and, therefore, prosecution for the offence should

have been launched within the period of limitation

provided in s. 468 of the Code. Rejecting the contention it

was held by this Court that the offence of which the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12

appellants were charged namely, non-payment of the

employer's contribution to the Provident Fund before the

due date, was a 'continuing offence' and, therefore, the

period of limitation prescribed by s. 468 of the Code could

not have any application and it would be governed by s.

472 of the Code, according to which, a fresh period of

limitation began to run at every moment of the time during

which the offence continued. It was accordingly held that

each day the accused failed to comply with the obligation to

pay their contribution to the fund, they committed fresh

offence. Section 472 of the Code of Criminal Procedure deals

with continuing offence and says:

"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."

The concept of continuing offence does not wipe out the

original guilt, but it keeps the contravention alive day by

day. It may also be observed that the courts when

confronted with provisions which lay down a rule of

limitation governing prosecutions, in cases of this

nature, should give due weight and consideration to the

provisions of S. 473 of the Code which is in the nature of

an overriding provision and according to which,

notwithstanding anything contained in the provisions of

Chapter XXXVI of the Code of Criminal Procedure any court

may take cognizance of an offence after the expiration of a

period of limitation if, inter alia, it is satisfied that it

is necessary to do so in the interest of justice.

The expression 'continuing offence' has not been

defined in the Code. The question whether a particular

offence is a 'continuing offence' or not must, therefore,

necessarily depend upon the language of the statute which

creates that offence, the nature of the offence and the

purpose intended to be achieved by constituting the

particular act as an offence.

Applying the law enunciated above to the provisions of

Section 630 of the Companies Act, we are of the view that

the offence under

410

this section is not such as can be said to have consummated

once for all. Wrongful withholding, or wrongfully obtaining

possession and wrongful application of the company's

property, that is, for purposes other than those expressed

or directed in the articles of the company and authorised by

the Companies Act, cannot be said to be terminated by a

single act or fact but would subsist for the period until

the property in the offender's possession is delivered up or

refunded. It is an offence committed over a span of time and

the last act of the offence will control the commencement of

the period of limitation and need be alleged. The offence

consists of a course of conduct arising from a singleness of

thought, purpose of refusal to deliver up or refund which

may be deemed a single impulse. Considered from another

angle, it consists of a continuous series of acts which

endures after the period of consummation on refusal to

deliver up or refund the property. It is not an

instantaneous offence and limitation begins with the

cessation of the criminal act, i.e. with the delivering up

or refund of the property It will be a recurring or

continuing offence until the wrongful possession, wrongful

withholding or wrongful application is vacated or put an end

to. The offence continues until the property wrongfully

obtained or wrongfully withheld or knowingly mis-applied is

delivered up or refunded to the company. For failure to do

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12

so sub-section (2) prescribes the punishment. This, in our

view, is sufficient ground for holding that the offence

under section 630 of the Companies Act is not one time but a

continuing offence and the period of limitation must be

computed accordingly, and when so done, the instant

complaints could not be said to have been barred by

limitation. The submission that when the first respondent

upon his retirement failed to vacate and deliver possession

of the company's quarter to the company the offence must be

taken to have been complete, has, therefore, to be rejected.

These appeals accordingly succeed. The impugned orders

are set aside and the cases are remanded to the Trial Court

for disposal in accordance with law in light of the

observations made herein above.

V.P.R. Appeals allowed.

411