- (1.) In this revisional application under sections 397, 401 read with section 482 of the Code of Criminal Procedure the petitioners submit that the opposite party lodged a complaint against the petitioners on 29.1.98, registered before the Ld. Chief Judicial Magistrate, Alipore, South 24- Parganas as Case No. C-352 of 1998, alleging that the petitioner No. 1 was the Company and the petitioner Nos. 2, 3 and 4 were its director in the relevant time and responsible for running the business, and that, from the Return dated 31-3-86 filed by the Company under Rule 10 of the Companies (Acceptance of Deposit) Rules 1975 it revealed that no advertisement nor any statement in lieu of advertisement had been filed in the office of the Registrar of Companies of West Bengal in respect of such acceptance renewal of deposits in accordance with Rule 4 of the said Rules to the tune of Rs. 1,04,000/- during the year 1985-86 and that the petitioners knowingly and willingly contravened the provision of Rule 4/4A of the said Rules read with section 58A of the Companies Act and thereby made themselves guilty of contravention of the Rule 4/4A of the said Rules and were liable for penalty as prescribed in section 58A(6) of the Act. The opposite party No. 1 complainant also alleged that the question of limitation did not arise as the offence complained of came to the knowledge of the complaint from the return of deposits as on 31.3.86 filed on 4.7.86.
(2.) The petitioners-accused submit that the Ld. Magistrate took cognizance, issued process in response to which the accused persons appeared before him, after which the proceeded with the case and plea was taken when all the petitioners-accused pleaded not guilty and the date was fixed for evidence. The petitioners claimed that the annual Return referred to above could reveal that no excess deposit as alleged by the complainant was accepted. The complaint was filed by submitting a stereo-type cyclostyled copy and the Ld. Magistrate took cognizance thereon machanically, without applying his mind, and as such the entire proceeding was vitiated for invalid cognizance and as such the proceeding was liable to be set aside. It was patent from the complaint filed and the orders of the Ld. Magistrate thereon that the complaint was filed and the orders were passed mechanically without application of mind and the same neither disclosed any offence or any substance on which the Magistrate could took steps lawfully. Whereas the petition of complaint was filed for violation of section 58A(6) of the Companies Act read with Rule 4/4A of the Companies (Acceptance of Deposits) Rules, 1975, the process was issued under section 220(3) of the Companies Act which reinforced the conclusion that the Magistrate acted machanically and did not apply his mind. Whereas the date of knowledge of the complaint as disclosed in the complaint was on and from 4.7.86 the complaint was lodged on 29.1.88, more than 18 months after the date of knowledge without any explanation for the delay, and as such the complaint was badly barred by limitation. The petitioners also submit that there was no scope for averments in the complaint as to the liability of the individual petitioners and as to how each of them was liable for the commission of offence. The complainant did not disclose under what authority he filed the complaint and as such it was only left to the Magistrate to hold that there was no proper complaint. But without applying his mind the Ld. Magistrate took cognizance, issued processes and proceeded with the case and as such the whole proceeding became illegal and liable to be quashed.
(3.) The complaint was lodged under section 58A(6) of the Companies Act read with Rule 4/4A of the Companies (Acceptance of deposits) Rules, 1975. Mr. Mitra on behalf of the petitioners argues that as the complaint was lodged on the allegation that Bengal Rolling Mills Ltd. v. G.C. Gupta (Cal.) it was disclosed from the annual return as on 31.3.86 filed by the petitioner-company on 4.7.86 that the company accepted/renewed deposits without complying with Rule 4/4A of the Companies (Acceptance of Deposits) Rules, 1975, the date of knowledge of the complaint was undoubtedly from 4-7-86. The complaint had been lodged on 29-1-88, some 18 months after the date of knowledge. The case as such was badly barred by limitation, as, for failure to comply with the Rules 4/4A of the-Companies (Acceptance of Deposits) Rules, 1975, hereinafter referred to as the Rules, the penalty was as provided under Rule I 1 of those Rules, and, as such, the penalty being only of fine, the case is barred by limitation under section 468 of the Cr.P.C. The next point urged by Mr. Mitra is that the complainant did not disclose as to how the present petitioners were liable and who of them was in-charge of management of the Company. The complainant did not specify any Act on the part any of the petitioner Nos. 2, 3 or 4 and for that none of them could be held liable for offence as alleged. The case was lodged only on the allegation of accepting renewing deposits in excess of,the limit provided for the companmy and hence the Rules as sought to be applied were not applicable at all. The Id. advocate for the petitioners further argues that the complaint was a stereo-type cyclostyled document without applying one's mind and the Ld. Magistrate also mechanically acted thereon and issued process, under section 220(3) of the Companies Act, patently without applying his mind, as the complaint having been lodged under section 58A(6) of the Companies Act, 1956, section 220(3) of the Act was not attracted at all. Hence the summonses issued were all illegal and a Magistrate not having applied his mind at all the whole case was vitiate and invalid and as such the proceeding is liable to be set aside. Mr. Mitra relies on the rulings reported in 1990 C Cr.LR (Cal) 253, 1998 C Cr. LR (Cal) 172. He submits that the offence as alleged not being a continuing offence, the case is not maintainable as badly barred by limitation. In support of his contention he relies on the ruling reported in (1990)1 Cal HN 266.;