Henderson, J.

1. This rule raises an interesting point with regard to aprosecution under Section 32, Companies Act. It is said that the petitioner wasthe managing director. At any rate, he has been convicted and fined underSection 76 of the Act on an allegation that he was wilfully a party to adefault by which no general meeting was held during the year which commenced on14th February 1937. He was then further prosecuted under Section 32. I cannothelp saying that this second prosecution seems rather pointless after thefirst. I can understand that if the defence of the petitioner had been that ageneral meeting was held and if it was found to be true, then there would besome point in prosecuting him under Section 32. But, in view of his convictionon the former charge, the latter might very well have been dropped. Now, thefirst ground upon which the rule was pressed was that the failure to hold apublic meeting made it impossible to comply with this section. This sectionrequires a list of persons and certain information to be submitted as to theaffairs of the company on a certain day. The certain day is the day upon whichthe first or the annual general meeting is held. Now I asked Mr. Bannerjee totell me out of the 365 available days which ought to have been selected by thepetitioner for the purpose of submitting this report. He was unable to give anyanswer and, as far as I can see, the petitioner has been punished for hisfailure to do something which it was impossible, for him to do. In support ofthe conviction, Mr. Bannerjee relied upon the decision of the Court of appealin Park v. Lawton (1911) 1 KB 588. That case is concerned with theinterpretation of a similar provision in the English Act. If I have understoodit correctly, the decision amounts to this that a person cannot put forward theimpossibility as a defence, if the impossibility has been due to his owndefault. If it had been necessary to decide whether in view of that decisionthe present conviction is proper, I should have most certainly sent the case toa Division Bench.

2. The rule, however, was also pressed with regard to aquestion of fact. On the principle of the English decision, it is doubtfulwhether the petitioner could be convicted without the Magistrate coming to anindependent finding that he was responsible for the default in connexion withthe failure to hold the meeting. But at any rate he had to decide whether theconduct of the petitioner amounted to knowingly or wilfully authorising orpermitting the default. He approached the case as though it was one in whichthe meeting had been held and the petitioner wilfully or knowingly permittedthe default under Section 32. But it was in fact impossible to comply with thatsection. The only way in which the conviction could be upheld is to accept thedecision to which I have already referred and then carry back the default tothe failure to call a general meeting. Now, that matter was not dealt with inthis case and it raises a question of fact. The learned Magistrate delivered hisjudgment ten months after he had heard the evidence. Ordinarily a retrial mightbe directed in such circumstances. But, in view of the fact that the petitionerhas already been convicted of something else, I do not think that it would beworth putting the parties to the expense of a further trial. The rule isaccordingly made absolute. The conviction and sentence are set aside and thefine, if paid, will be refunded.

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Surendra Nath Sarkarvs. Emperor (01.08.1941 - CALHC)