1. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners - original accused to quash and set aside the impugned Criminal Case No. 854 of 2005, pending in the court of learned Metropolitan Magistrate, Ahmedabad, filed by the respondent No.2 - Registrar of Companies under section 58A(1)(6) of the Companies Act, 1956 (hereinafter referred to as "the Act" for short) read with Rule 3(2)(i)(ii) and Rule 11 of the Companies (Acceptance of Deposit Rules, 1975 (hereinafter referred to as "the Rules" for short) and Section 58A(6) r/w Section 58 AAA(2) of the Act.
2. The respondent No.2 herein - Registrar of Companies had lodged Criminal Case No.854 of 2005 against the petitioners in the court of learned Chief Metropolitan Magistrate, Ahmedabad alleging inter-alia that the petitioner No.1 is incorporated under the Companies Act, 1956 and has been registered as Public Limited Company and accused Nos.2 and 3 were directors of the Accused No.1 Company at all relevant time and were liable for default / violation of the Companies Act, 1956. It is further alleged that the accused No.1 Company has filed Return of the Deposit on 31/3/2011 and in the said Return of Deposit it was disclosed that the deposit under Rule 3(2)(i) of the Rules was for an amount of Rs.51,30,000/-, which was beyond 10% which was permissible and the Company accepted excess deposit under Rule 3(2)(i) more than 10%. Thus, there is violation of provisions as alleged. It was also stated in the said complaint that prior to filing of the complaint, the petitioners were served with show cause notice dtd.29/6/2005, which was replied by the petitioners and there was no satisfactory reply from the petitioners and therefore, the aforesaid complaint has been filed. In the said complaint the learned Magistrate issued Summons / Process against the petitioners and hence the petitioners have preferred present petition under section 482 of the Code of Criminal Procedure.
3. Mr.Thakkar, learned advocate appearing on behalf of the petitioners has vehemently submitted that the petitioners have not committed the offence, as alleged. It is further submitted that the department has materially erred in considering Rs.25 Lacs as deposit under Rule 2(b) of the Rules. It is submitted that as such the deposit of Rs.25 Lacs was by Shree Hasmukh Patel HUF, who stood as guarantor when the Company took finance from GIIC and therefore, as such considering Rule 2(b)(iii) of the Rules, the same cannot be termed as deposit.
4. Mr.Thakkar, learned advocate appearing on behalf of the petitioners has further submitted that even subsequently the accused No.1 Company was converted into Private Limited Company and therefore also no complaint could have been filed against the petitioners.
5. Mr.Thakkar, learned advocate appearing on behalf of the petitioners has further submitted that even the complaint is required to be quashed and set aside on the ground of delay, as the show cause notice has been issued after a period of four years from the date of submitting Accounts / Returns and therefore, the impugned complaint deserves to be quashed and set aside.
6. Present petition is opposed by Mr.Anshin Desai, learned Central Government Standing Counsel appearing on behalf of the respondent No.2 - original complainant. It is submitted that as such there are necessary averments and allegations in the impugned complaint prima facie disclosing commission of cognizable offence and considering the same when the learned Magistrate has directed to issue process against the petitioners, the same is not required to be interfered with by this Court in exercise of powers under Sec.482 of the Code of Criminal Procedure.
7. Mr.Anshin Desai, learned Central Government Standing Counsel appearing on behalf of the respondent No.2 - original complainant has further submitted that even before filing of the complaint, notice was issued to the accused persons seeking their explanation which was replied by the accused persons vide letter dtd.9/7/2004 which was also considered and after considering all these aspects it has been found that offence has been committed by the petitioners herein and only thereafter complaint has been filed. It is submitted that accused persons have committed offence under the Companies Act, 1956 and Companies (Acceptance of Deposit Rules, 1975 read with Rule 58A of the Rules.
8. Mr.Anshin Desai, learned Central Government Standing Counsel appearing on behalf of the respondent No.2 - original complainant has further submitted that whatever is submitted on behalf of the petitioners is apart from the fact that same is after thought and the said aspect was not mentioned in the reply to the Show Cause Notice issued by the Department, even it can be said that same are defences which can be considered at the time of trial by leading evidence. Therefore, it is requested to dismiss the present petition.
9. Mr.Dabhi, learned Additional Public Prosecutor has supported the learned Central Government Standing Counsel and has requested to dismiss the present petition.
10. Heard the learned advocates appearing on behalf of the respective parties at length.
11. At the outset, it is required to be noted that it is alleged against the petitioners - original accused that they have committed offences under the Companies Act and Companies (Acceptance of Deposit Rules, 1975 read with Rule 58A of the Rules alleging inter-alia that the Company accepted term deposit more than the prescribed limit of 10% and thereby the accused have violated provisions of the Act and the Rules. It is required to be noted that it is the case on behalf of the petitioners that out of total deposit of Rs.51.30 Lacs shown in the Return of deposit as on 31/3/2001, Rs.25 Lacs were from one Hasmukhbhai G. Patel, HUF, Promoter of the Company and for the aforesaid amount guarantee was given by the said HUF to GIIC and therefore the said deposit cannot be considered to be term deposit for the purpose of section 58A(1) of the Companies Act and if the aforesaid amount of Rs.25 Lacs are deducted, in that case, term deposit was less than 10%. However, it is to be note that the aforesaid seems to be an afterthought. It is to be note that before filing of the complaint, petitioners and the accused persons were served with the show cause notice by the office of the Registrar of Companies and to that there was a reply given by the accused persons on 9/7/2004 and in the said reply there was no reference to said Hasmukh G. Patel, HUF stood as guarantor to GIIC and the only explanation was that HUF was now a shareholder of the Company and therefore, it can be said that the said deposit was from any individual. Considering the aforesaid when there are specific averments and allegations in the complaint with respect to breach of section 58A(1) of the Companies Act read with Rule 3(2)(i) of the Rules and considering the above when the learned Magistrate has directed to issue process against the petitioners, it cannot be said that the learned Magistrate has committed any error and/or illegality which calls for interference of this Court in exercise of powers under sec.482 of the Code of Criminal Procedure. Whatever is submitted on behalf of the petitioners are all defences which are require to be considered at the time of trial on leading evidence. Prima facie case is made out against the petitioners for the trial. Therefore, this Court is of the opinion that this is not a fit case to exercise powers under sec.482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint and order passed by the learned Magistrate directing to issue process against the petitioners for the alleged offences.
12. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith.
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[M.R.
SHAH, J.] rafik Top