1. The petitioners have approached this Court under section 397 of Cr.P.C., in substance, for modification of order dated 19.7.2007 whereby the petitioners' application, being Misc. Application No.1 of 2007 is dismissed. That application had come to be filed in the original Criminal Case No.46 of 2003, the judgment in which was challenged before this Court in Criminal Revision Application No.533 of 2003 and wherein, by order dated 06.9.2006, the application was allowed, original order dated 7.10.2003 of learned Additional City Civil Judge, Ahmedabad in Criminal Appeal No.29 of 2003 was set aside and the matter was remanded to learned Additional Chief Metropolitan Magistrate, Ahmedabad with the direction to consider the same for grant of benefit under sections 360 and 361 of Cr.P.C. By the impugned order, learned Additional Chief Metropolitan Magistrate has dismissed the application of the applicants mainly on the grounds that sections 360 and 361 of Cr.P.C. do not apply in Gujarat, that the applicants had not voluntarily complied with the mandatory provisions of the Companies Act 1956, committed offence punishable under section 97 (3) of that Act and it did not have the power to review the order of punishment in view of the provisions of section 362 of the Cr.P.C.
2. The short facts of the case are that the applicants had to notify increase in authorized capital of the company and only after notice of the Registrar of Companies and 22 months, paid the necessary stamp duty of Rs.2,70,000 with registration fees of Rs.7,50,000 alongwith interest @ 30% upto 28/7/2003 amounting to Rs.3,93,750/-. With the backdrop of facts, it was submitted for the applicants that the applicants having no guilty mind, having confessed the facts and having already been punished with fine, at least applicant No.2, the manging director of applicant No.1 company, was required to be given benefit of the provisions of section 3 of the Probation of Offenders Act, 1958 (for short, “the Act”) so as to modify the order of punishment for applicant No.2 for the reasons that it shall have unintended adverse consequences for him in the form of disqualification and loss of reputation.
3. It clearly appears from the record that the order of the High Court, in Criminal Revision Application No.533 of 2003, after elaborate discussion on merits, had set aside order dated 07.10.2003 in the applicant's appeal and remanded the matter to learned Additional Chief Metropolitan Magistrate with the direction to consider grant of benefit under sections 360and 361 of Cr.P.C. Those provisions being substituted in Gujarat by the provisions of the Act, the case of the applicants was required to be considered under sections 3 and 4 thereof; and it could not have amounted to reviewing the judgment in violation of section 362 of Cr.P.C. It is also clear that the applicants may not have incurred punitive interest @ 30% p.a. by wilfully committing default in notifying the increase in share capital of the company. In any case, they had already paid the necessary fees with interest long back, confessed the offence and paid the fine imposed by the Court. Under the circumstances, the applicants were entitled to consideration of their case under section 3 of the Act; and punishment of fine could legally be dispensed with in case of applicant No.2 as submitted by learned counsel Mr.A.D.Shah.
4. Accordingly, the application is partly allowed and the order of punishment in the original judgment dated 10.7.2003 in Criminal Case No.46 of 2003 is modified to the extent that applicant No.2 is released after admonition to be careful in future so as not to commit any offence of similar nature under the Companies Act and scrupulously comply in time with the provisions of that Act. The order of sentence of fine is set aside. However, the amount of fine already paid by him shall not be refunded to him but adjusted as cost of the proceedings in terms of section 5 of the Act. Rule is made absolute accordingly. Direct service.
(KMG Thilake) Sd/-
( D.H.Waghela, J.)