IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.06.2017 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN Crl.O.P.Nos.18040, 18041, 18050 & 18051 of 2010 and M.P.Nos.1, 1, 1 and 1 of 2010
1. M/s.Bhuvaneswari Corporation Limited, 14/15, Old Trunk Road, Chennai-43.
2. G.Rangachari 3.R.Devarajan 4.P.B.Rangachari 5.S.Narayanan .. Petitioners/Accused 1 to 5 in all the Crl.O.Ps.
Vs The Deputy Registrar of Companies, Tamil Nadu, Having Office at Shastri Bhavan, No.26, Haddows Road, Chennai – 600 006. .. Respondent/Complainant in all the Crl.O.Ps.
COMMON PRAYER: Criminal Original Petitions filed under Section 482 of the Code of Criminal Procedure, to call for the entire records in E.O.C.C.Nos.350, 353, 351 and 352 of 2009 pending on the file of the Additional Chief Metropolitan Magistrate Court, Economic Offences (E.O.-II), Egmore, Chennai and quash the entire proceedings against the petitioners.
(In all the Crl.O.P.s) For Petitioners : M/s.R.Amizhdhu For Respondent : Dr.D.Simon Central Government Standing Counsel COMMON JUDGMENT These criminal original petitions were preferred by the petitioners / Accused A1 to A5 to against the complaint pending in E.O.C.C.Nos.350 to 353 of 2009 on the file of learned Additional Chief Metropolitan Magistrate Court, Economic Offences (E.O.II) Egmore, Chennai.
2. Brief case of the petitioners/accused A1 to A5 in all the Criminal Original Petitions:
The facts of the case is that the respondent herein filed a complaint under section 159 read with section 162 of the Companies Act as against these petitioners/accused alleging that no Annual General Meeting was held in terms of section 159 of the companies act and that the annual general meeting of the company for the financial year 31.03.2007 should have been held by 30.09.2007 and the Annual Return made up to date should have been filed with the complainant within 60 days from the said date i.e. on or before 29.11.2007. In pursuant to the provision laid in the Companies Act, no Annual General Meeting was held by the accused company and not filed returns made up to 30.09.2007 thereby committed an offence under section 159 of the act which is punishable under section 162 of the act. That as per the section 162 of the companies act every officer of the company who is in default shall be punishable with the fine which may extend to five hundred rupees for every day during the default continues. The offence under section 159 of the act is continuing one within the meaning of the section 472 of the code of criminal procedure and therefore no question of limitation arises and the default commenced on 30.11.2007 is still continuing as on the date of filing the complaint. The case of the petitioners/accused is that they were the directors of the then existed company till the date of dissolution of the company M/s Bhuvaneswari Corporation limited and after the dissolution of the said company they automatically seized to be the directors as such they are not continuing as the officers of the said company. That M/s.Bhuvaenswari Corporation Limited, the petitioner transfer company in C.P.No.76 of 96 and is hereby dissolved without winding up.
3. On 31.12.2003 the office of the Registrar of Companies in response to the letter dated 20.11.2003 of intimation of the dissolution of the first petitioner/ accused company replied a letter calling for the details with documentary evidence regarding filing of the dissolution order with Form No.21 as required under section 394 (3) of the act. On 06.01.2004 the details along with form No.21 was filed. On 04.02.2004 the office of the Registrar of companies in response acknowledged the filing of original order in C.P.Nos.76 and 77 of 1997 dated 26.09.1997 along with form No.21 but directed the company to pay a sum of Rs.4500/- towards additional fee for the delay in filing the above documents.
4. In response and in complaint of the demand on 23.02.2004, the company paid the amount of Rs.4,500/- vide demand draft No.887481 dated 23.02.2004 by way of RPAD which was acknowledged by the said office on 25.02.2004. On 02.06.2004 the office of the Registrar of companies has sent a communication stating the non receipt of required fees of Rs.4,500/- and returned the papers. Immediately on 03.06.2004 itself the company represented the papers and also furnished the details of payment made on 23.02.2004. Once again on 29.06.2004 the company sent a detailed reply and requested the respondent office to treat the matter as closed. The company also got a proof that the fees were paid as demanded by the R.O.C. on 28.02.2004.
5. The further case of the respondent is that the petitioners/accused has not filed the annual return made up to 30.9.2007 before the complainant there by committed an offence under section 159 of the act which is punishable under section 162 of the act. Both show cause notice was issued on 16.6.2008 by the complainant in this behalf. That as per the section 162 of the companies act, every officer of the company who is in default shall be punishable with the fine which may extend to five hundred rupees for every day during which the default continues. The offence under section 159 of the act is a continuing one within the meaning of the section 472 of the code of criminal procedure and therefore no question of limitation arises. The default commenced on 30.11.2007 is still continuing till the date of filing of this complaint.
a) To summon the accused and punish them according to law for the above said default.
b) To order that the service of summons on the accused company may be effected on the A2 to A5 as the directors of the company as per section 63 of the code of criminal procedure 1973.
c) To direct the accused officers/directors of the company under section 614(A) (1) of the act to filing with the complainant the said annual return along with normal filing fee and additional fee under section 611(2) of the companies act, 1956 within 30 days or within the time as may be fixed by the learned trial Court.
d) Pass such order/orders under section 626 of the companies act as to cost of these proceedings as might appear just and proper to this learned trial Court.
e) That the complainant is a public servant and he is filing this complaint in his official capacity. Again this complaint is mostly based on the records maintained in his office and therefore it is further prayed that his attendance in this learned trial Court may be dispensed with under provision to section 256(1) of the criminal procedure code 1973 read with section 621(1-A) of the companies act, 1956.
6. Hence, the petitioners/accused filed this petition for quashing the proceedings.
7. The learned counsel for the petitioners/accused submits that no prima facie case has been made out against the petitioners under section 159 of the company’s act 1956 as the first petitioner company was already dissolved by an order of this Court in C.P.Nos.76 and 77 of 1996.
8. The learned counsel for the petitioners/accused submits that the complaint against these petitioners are not maintainable even to the knowledge of the complainant since it was already informed by these petitioners to the office of the respondent that the company was already dissolved and Form No.21 was also filed along with the order copy as admitted by the respondent office.
9. The learned counsel for the petitioners/accused submits that the complainant did not peruse the documents available before filing the co plaint. The complaint was filed as a routine ritual without the verification of the records already available in their office.
10. The learned counsel for the petitioners/accused submits that the complaint is nothing but a clear non application of mind on the part of complainant. These petitioners have given a reply detailing the facts of dissolution of the company in response to the notice issued by the office of R.O.C. for default under Sections 159, 166, 210, 220 of companies act on 29.06.2004 and consequently the respondent did not initiate any action from the year 1998 onwards. From the financial year 31.03.1998 till the financial year 31.03.2005 the respondent office did not take any action but suddenly prosecute the petitioners for the filing the returns for the financial year 31.03.2007.
11. The learned counsel for the petitioners/accused submits that the prosecution and its continuation is contrary to law and if at all if any violation that can be alleged against the petitioners is that they did not comply the provisions as contemplated under section 394(3) of the companies act 1956 but not the offence as alleged in the impugned complaint.
12. That the annual general meeting of the company for the financial year 31.03.2007 should have been held latest by 30.09.2007 the annual return made up to that date should have been filed with the complainant within 60 days from the said date i.e. on or before 29.11.2007 in case no annual general meeting was held within 60 days of the due date of annual general meeting in terms of section 159 of the act.
13. The learned Central Government Standing Counsel opposed the contentions of the petitioners and sought for dismissal of the petition.
14. I heard M/s.R.Amizhdhu, learned counsel for the petitioners and Dr.D.Simon, learned counsel for the respondent and perused the entire materials available on record.
15. In the case on hand, all the E.O.C.C.Nos.350 to 353 of 2009 were challenged by the petitioners/accused in this quash petition. The contention of the petitioner/accused is that the company was wind up and dissolved by the order of this Court which was not disputed by the respondent/complainant. The petitioners/accused 2 to 5 were the directors of the existed company i.e, the 1st petitioner/accused herein till the date of the dissolution of the company vide in C.P.No.76 of 1996 dated 26.9.1997.
16. It is also an admitted fact that, there were serious letter transactions intimating the dissolution of the 1stpetitioner/accused company to the respondent/complainant as required under section 394 (3) of the companies act. The registrar of companies also accepted the communication and requested the respondent/complainant office to treat the matter as closed. Instead of verifying the same, the respondent/complainant instituted the complaint before the jurisdictional Court against the petitioners/accused A1 to A4 u/s 159 r/w 162 of the companies act 1956. Even the averments of the complaint impliedly showing the dissolution of the company but express allegations against the petitioner is that they have not filed the annual return upto 30.9.2006 to them. On the other hand, the respondent/complainant received the express communication from the registrar of companies regarding the winding up and the order of this Court in C.P.No.76 of 1996 . Therefore nothing survives in the complaint filed by the respondent/complainant.
17. In the result, all the criminal original petitions filed by the petitioners/accused A1 to A5 are allowed and the proceedings filed in E.O.C.C.Nos.350 to 353 of 2009 pending on the file of the learned Additional Chief Metropolitan Magistrate Court, Economic Offences (E.O.II) Egmore, Chennai, are quashed. Consequently, connected miscellaneous petitions are closed.
23.06.2017 Note:Issue order copy on 05.03.2019 vs Index : Yes/No To The Additional Chief Metropolitan Magistrate Court, Economic Offences (E.O.II), Egmore, Chennai.
M.V.MURALIDARAN, J.
vs Crl.O.P.Nos.18040, 18041, 18050 & 18051 of 2010 and M.P.Nos.1, 1, 1 and 1 of 2010 23.06.2017