Holding

Section 630(1)(b) creates a continuing offence, so the limitation period must be computed afresh and the complaints are not time‑barred.

Summary

The appellant, Gokak Patel Volkart Ltd., filed criminal complaints under Section 630(1)(b) of the Companies Act, 1956 and Section 406 IPC against former employees who, after retirement, failed to vacate company quarters. The trial magistrate dismissed the complaints as time‑barred under the six‑month limitation prescribed in CrPC Section 468, a view affirmed by the Karnataka High Court. The Supreme Court examined whether the offence under Section 630(1)(b) is a "continuing offence" for the purpose of limitation, interpreting "officer or employee" to include past officers and considering the nature and purpose of the provision. Relying on statutory construction, comparative law, and earlier decisions, the Court held that the offence persists until the property is returned, making it a continuing offence, and thus the limitation period must be computed afresh, rendering the complaints not barred. Consequently, the appeals were allowed, the lower court orders set aside, and the matters remanded for trial.

Issues considered

The offence under Section 630(1)(b) of the Companies Act, 1956 – whether it is a continuing offence for the purpose of limitation under CrPC.
Whether the six‑month limitation period under CrPC Section 468 applies to the complaint.
Interpretation of "officer or employee" in Section 630 – does it include past officers and employees.

Legislation cited

Code of Criminal Procedure, 1973s. 468, s. 472, s. 473
Companies Act, 1956s. 630(1)(b), s. 630(2)
Indian Penal Code, 1860s. 406, s. 441, s. 448

Subjects

Continuing offenceLimitation periodCompanies Act Section 630Wrongful withholding of propertyPast employeeCriminal Procedure CodeCorporate propertyTrespass

Judgment

).
'

GOKAK PATEL VOLKART LTD.
A v.
DUNDAYYA GURUSHIDDAIAH HIREMATH AND ORS. ---1
FEBRUARY 14, 1991

B [K.N. SAIKIA AND MADAN MOHAN PUNCHHI, JJ.]

Companies Act, 1956-Section 630-Continuing offence-Cons-
truction of-Court's duty-Legislative intention.

Companies Act, 1956-Section 630_..:..."0fficer'' or "employee"-
lncludes past and present officer or employee.
c
Criminal Procedure Code, 1972-Section 472-"Continuing
offence"-Construction and nature of-Limitation computation.
-
Companies Act, 1956-Section 630(1)(b)-Non-vacation o~
D quarters even after retirement-Continuing offence for the purpose of
limitation.

Appellant-Company filed criminal complaints under Section '
'-

630(1)(b), Companies Act and Section 406, IPC against its employees
(the first respondent of each appeal) as they did not vacate the company
E quarters after about six months even after retirement. The Judidal >-. _,_
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)
F was not a continuing offence, dismissed the Company's revision
petitions.

In the appeal to this Court on the question, whether the offe~ .._
under Section 630(l)(b) of the Companies Act is a continuing offence for
the purpose of limitation, allowing the Appeals of the Appellant-Com-
G pany, this Court,

HELD: 1. The beneficent provision contained in s. 630, no doubt
penal, has been purposely enacted by the legislature with the object or--
providing a summary procedure for retrieving the property of the com-
H pany: (a) where an officer or employee of a company wrongfully obtains

396
VOLKART LTD. v. D.G. HIREMATH 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 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 origi-
- nal 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 ovei;riding
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 EI
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 F
-,.- obtaining possession and wrongful application of the company's pro-
perty, 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 G
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 H
398 SUPREME COURT REPORTS [1991] 1 S.C.R.

A 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 posses-
sion, 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
B 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
c said to have been barred by limitation. [4100-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 Cor-
o po ration of India Ltd. and Anr., [1987] 4 S.C.C. 361; Amrit Lal Chum
v. Devoprasad Dutta Roy and Anr.. etc., [1988] 2 S.C.R. 783; State of
Bihar v. Deokaran Nenshi, [1973] 1S.C.R.1004; Bhagirath Kanoria &
Ors. v. Stat2 of Madhya Pradesh & Ors., [1985] 1S.C.R.626 followed.

Black's Law Dictionary,. Eigth Edition, (Special Deluxe);
E Salmond and Heuston on the Law of Torts, 19th Edn. Page 50; Hals-
bury's Laws of England. 4th Edn. Vol 45, Para 1389-referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 97, 98, 99 100 & 101of1991.
F From the Judgment and Order dated 2.12.1989 of the Karnataka
High Court in Criminal R.P. No. 458, 459, 460, 461and462of1989. __/-

A.S. Bobde, Attorney General, Vinod Bobde and S. Sukumaran
for tl~e Appellant.
G G. Ramaswamy, K.N. Nobin Singh and Ms. Lalitha Kaushik for
the Respondents. M. Veerappa for the State ofKarnataka.

The Judgment of the Court was delivered by

K.N. SAIKIA, J. Special leaves granted.
H
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.] 399

These five appeals are from as many similar orders of the. High
Court of Karnataka at Bangalore dismissing the appellant company's A'
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(1)(b) of the Companies Act by not vacating the Company's
quarters as required by it even more than six months after retirement B
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 ap-
)- pointed 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, respec- c
tively, 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 retire-
ment, despite legal notice, the appellant company filed a private crimi-
nal complaint under s. 630( l)(b) of the Companies Act, 1956 and D
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. ands. 630(1)(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 E
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 docu-
ments produced by the company did not disclose anything regarding
_ ~the retirement of the accused from the service, but at the same time he F
. recorded that during the course of evidence P. W. 1 had deposed that
each of the accused retired from service and immediately after the
retirement failed to redeliver possession of the company's quarter
which attracted s. 630(1)(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 G
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 H
400 SUPREME COURT REPORTS [1991] 1 S.C.R.

beyond six months from the date of the alleged offence and that the .-J
A question of limitation was concluded by a decision of the same High 1
Court in W.M./. Cranes Ltd. v. G.G. Advani & Anr., (1984] I Kar.
Law Cronicle 462 wherein it was held that the offence under s. 30 ( I)
of the Companies Act was not a continuing offence and the decisions
of this Court in Bhagirath Kanoria and Ors. v. State of Madhya
B 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( l)(b) of the
Companies Act, 1956 is a continuing offence and the learned courts
c .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 retire-
D ment failed to vacate and deliver possession of the company's quarter
to the eompany, the offence must be taken to have been complete, and
thereafter right could accrue to the first respondent by adverse posses-
sion; 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
E 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(1)(b) of the Companies Act is a
continuing offence for the purpose of limitation.

F 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
G 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
H single impulse." So also a 'Continuous Crime' means "one consisting
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.} 401
i

,, of a continuous series of acts, which endures after the period of consu-
A
mmation, as, the offence of carrying 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."
I
The corresponding concept of continuity of a civil wrong is to be

-
B
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 c
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 . D
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 E
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
-·4\.- the removal of the thing which is thus trespassing; successive actions ,
F

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 iogical or
convenient may be a question, but it has been repeatedly decided to be
the law." G

Again if the entry was lawful but is subsequently abused and I
continued after the permission is determined the trespass may be ab
initio. In 1610 six carpenters entered the Queen's Head Inn, Cripple-
gate, and consumed a quart of wine (7d.) and some bread (ld.), for 1

which they refused to pay. The question for the court was whether H
402 SUPREME COU,RT REPORTS [1991] 1 S.C.R.

their non-payment made the entry tortious, so as to enable them to be
A sued in trespass quare clausum fregii. 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
B 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
c authority given him by law, and, while there, abuses the
authority by. an act which amounts to a trespass, he
becomes a, trespasser ab initio, and may be sued as if his
original entry wen~ unlawful. Instances of any entry under
the authority of the law are the entry of a customer into a
D 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 norifeasance is not
enough."
E
Against the above background, we may now examine the rele-
vant 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
F as follows:

"Whoever enters into or upon property in the posses-
sion of another with intent to- commit an offence or to
intimidate, insult or annoy any person in possession of such
property, or havin_g lawfully entered into or UQOn s.uch
G 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 posses-
H sion of another is lawful then unlawfully remaining upon such property
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.] 403

with the object of intimidating, insulting or annoying the person in
possession of the property would be criminal trespass. The offence A
would be continuing so long as the trespass is not lifted or vacated anq
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:
B
"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 caus-
ing annoyance to such a person. Even then we propose to C
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 D
is committed. It may also oe aggravated by the end for
which it is committed."

Section 630 of the Companies Act reads as under:

"Penalty for wrongful withholding ofproperty. · E

( 1) If any officer or employee o~ a company-

( a) wrongfully obtains possession of any property of a
company or
F
(b) having any such property in his possession, wrongful,ly
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 credit6r G
or contributory thereof, be punishable with fine which mh
extend to one thousa,nd rupees.

(2) The Court trying the offence may also order such
officer or employee to deliver up or· refund, within a time
to be fixed by the Court, any such property wrongfuily H
404 SUPREME COURT REPORTS [1991] 1 S.C.R.

obtailled or wrongfully withheld or knowingly misapplied,
A 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 punishabie under sub-sec. (1). Under sub"sec. (2) know-
ingly misapplication has also been envisaged. The offence continues

-
B
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 im_prisonment. The idea of a continuing
offence is implied in sub-section (2).

Section 468 of the Criminal Procedure Code says:
c
"Bar to taking cognizance after lapse of the period of
limitation-

(1) Except as otherwise provided elsewhere in this Code,
D no Court shall take cognizance of an offence of the cate-
gory specified in sub-section (2), after the expiry of the
period of limitation.

(2) The period of limitation shall be-

E (a) six months, ifthe offence is punishable with fine only;

(b) one year, if the offence is punishable with imprison-
ment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprison-
F ment for a term exceeding one year but not exceeding three ,
~-
years.
1
1
(3) For the purposes of this section, the period of limita- \
tion, in relation to offences which may be tried together,
shall be determined with reference to the offence which is
G 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 frfa1 Magistrate observed that the document
H did not specifically state that the first respondent retired, when after
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.] 405

referring tc oral evidence the cause of action under s. 630(1)(b) was
A
held to have arisen on the first respondent's failure to vacate and
deliver posse~c;;ion of the company's quarter and that the period of
limitation ran therefrom tantamounted to finding that the first respon-
uent did retire.
i
I
"Officer" or "employee" in s. 630 of the Companies Act B
includes both presen~ 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 c
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 contemp-
lated by clause (a), namely, where an officer or employee D
of a company wrongfully obtains possession of any pro-
perty 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 wrong- E
fully 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 past
officers and employees. Jn contrast, clause (b) contem-
plates a case where an officer or employee of a company
having any property of a company in his possession wrong- .F
fully witholds it or knowingly applies it to purposes other
j
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 employ- G
ment. 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 pro-
perty 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 H
406 SUPREME COURT REPORTS [1991] 1 S.C.R.

apply to the present officers and employees and may also
A include past of(icers 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 separa- '
ted by the word 'or' and therefore are clearly disjunctive."
B
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 posses-
c sion 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
D remedy. "It is the duty of the court to place a broad and liberal con-
struction 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
E and Anr. etc. , reported in [ 1988] 2 SCR 783 that "s. 630 of the Com-
panies 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 withholding of
--
such property, meaning the property of the company after the termina-
F tion 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 Dictio-
nary 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
G 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 offence. Section 79 of the Mines Act, 1952 which provided
that no Court shall take cognizance of an offence under the Act unless
H a complaint was made within six months from the date of. the offence
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.] 407

and the explanation to the section provided that if the offence in
question was a continuing offence, the period of limitation shall be A
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 liabi-
lity for which continues until the rule or its requirement is
obeyed or complied with. On every occasion that such dis-
obedience or non-compliance occurs and recurs, there is
the offence committed. The distinction between the two C
kinds of offences is between an act or omission which con-
stitutes 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 con- o
tinuance of the offence which is absent in the case of an
offence which takes place when an act or omission is com-
mitted 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., E
[1909] 1 KB-444; Rex v. Ya/ore, (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 repre-
senting himself to be a member of a trade union, by false representa-
tion or imposition obtained possession of any moqeys, books etc. of F
such trade union, or, having the same in his possession wilfully with-
held or fraudulently misapplied the same, a court of summary jurisdic-
tion would order such person to be imprisoned. The offence of with-
holding the money referred to in this section was held to be a continu-
ing offence, presumably because every day that the moneys were wil-
fully withheld an offence within the meaning of S. 12 was committed. G
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 steam, water or other mechanical power must be securely fenced.
Its sub-section (2) provided that a factory in which there was contra-
vention 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 H
408 SUPREME COURT REPORTS [1991] 1 S.C.R.

or workshop if he failed to keep the factory or workshop in conformity
A
with the Act. Section 146 provided that information for the 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
B was kept unfenced to the knowledge of the Inspector and yet the
information was not laid until July 22, 1908. The information, how-
ever, 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, a·-d therefore the information was
in time. The offence under s. 135 reao withs. 10 consisted in failing to
c keep the factory in conformity with the Act. Every day that the fly- -f
wheel 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 Amend- ·y---4
ment Act, 1852 prohibited the erection of a building on the side of a
D new street of less thr:i 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·
E 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.

F 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 respon-
dent company charging them with non-payment of employer's con-
tribution under the Employees' Provident Fund and Family Pension
G 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
H question of limitation could arise, and that order having been upheld
VOLKART LTD. v. D.G. HIREMATH [SAIKIA, J.] 409

b¥ the High Court in revision, the Directors in appeal to this Court
A
contended that the offence of non-payment of the employer's con-
tribution 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 ins. 468 of the Code. Rejecting the contention it was held by
this Court that the offence of which the appellants were charged, B
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 bys. 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 accord-
ingly held that each day the accused failed to comply with the obliga- c
tion to pay their contribution to the fund, they committed fresh off-
ence. Section 472 of the Code of Criminal Procedure deals with con-
tinuing offence and says:

"In the case of a continuing offence, a fresh period of limita- D
tion 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 E
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 provi-
~ sions of Chapter XXXVI of the Code of Criminal Procedure any court
· y-- may take cognizance of an offence after the expiration of a period of F
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 G
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 H
410 SUPREME COURT REPORTS [1991] 1 S.C.R.

·A 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
B
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 ·-{
c 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 posses-
sion, wrongful withholding or wrongful application is vacated or put an (
D 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 so sub-section (2) pre-
scribes 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
E computed accordingly, and when so done, the instant complaints could
not be said to have been barred by !imitation. The submission that
when the first respondent upon his retirement failed to vacate and
I deliver possession of the company's quarter to the ·company the
· offence must be taken to have been complete, has, therefore, to be
rejected.
F
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.