2008 (12) TMI 401 - HC - Companies Law

Company incorporation of Shares - Allotment of to be dealt in stock exchange Officer in default - Whether criminal liability of a director would arise only when he is an officer

Summary

Issues Involved:
1. The powers of the High Court under section 482 Cr.PC.
2. Limitation.
3. Whether the acts or omissions of the petitioners constitute offences under section 403 and under section 406 IPC.
4. Whether any offence has been committed under section 73 of the Companies Act.
5. Whether the directors who have allegedly committed offences are 'officers in default' under section 5 of the Companies Act.
6. Whether the directors are vicariously liable for the offences, if any, committed by the companies.

Detailed Analysis:

1. The Powers of the High Court under Section 482 Cr.PC
The judgment emphasizes that the High Courts should exercise their powers under section 482 Cr.PC sparingly and only in the rarest of cases to prevent abuse of the process of law. The court must consider whether the uncontroverted allegations in the complaint prima facie constitute offences. The judgment refers to the case of Som Mittal v. Government of Karnataka and State of Haryana v. Ch. Bhajan Lal, which outline categories of cases where the High Court should exercise its powers under section 482 Cr.PC. The present case is argued to fall within the seventh category, which involves proceedings manifestly attended with mala fide and instituted with an ulterior motive.

2. Limitation
The judgment discusses the bar to taking cognizance of offences after the expiry of the period of limitation as prescribed under section 468 Cr.PC. The offences under section 73 of the Companies Act have a limitation period of one year, while those under sections 403 and 406 IPC have a limitation period of three years. The judgment concludes that the complaint, which relates to events from 1993, is barred by limitation. The court rejects the argument that the offences are continuing in nature, citing precedents that establish that criminal breach of trust and misappropriation are not continuing offences.

3. Offences under Sections 403 and 406 IPC
The judgment examines whether the allegations in the complaint fulfill the essential ingredients of sections 403 and 406 IPC. It concludes that there was no entrustment of property or dominion over the property by the petitioners, which is a necessary element for constituting offences under these sections. The court refers to several judgments, including U. Dhar v. State of Jharkhand and Velji Raghavji Patel v. State of Maharashtra, to support its conclusion that the complaint does not make out a case under sections 403 and 406 IPC.

4. Offence under Section 73 of the Companies Act
The judgment analyzes whether the preferential offer document of 1993 and the offer of 2003 constitute a prospectus under section 73 of the Companies Act. It concludes that the offer was not made to the public but only to the shareholders of SGL, and therefore, does not attract the provisions of section 73. The court refers to the definition of 'prospectus' under section 2(36) of the Companies Act and concludes that the document in question does not meet this definition.

5. 'Officer in Default' under Section 5 of the Companies Act
The judgment discusses the definition of 'officer in default' under section 5 of the Companies Act and concludes that none of the petitioners fall within this definition. Therefore, they cannot be held liable for any breach of section 73 of the Companies Act. The court emphasizes that criminal liability requires both mens rea and actus reus, which are not established in this case.

6. Vicarious Liability of Directors
The judgment rejects the argument that the directors can be held vicariously liable for the offences committed by the companies. It refers to the Supreme Court's ruling in Maksud Saiyed v. State of Gujarat, which states that the Indian Penal Code does not provide for vicarious liability of directors. The court also notes that the complaint does not attribute any specific role or overt act to the directors that would constitute an offence under sections 403 and 406 IPC.

Conclusion
The judgment concludes that the complaint is actuated by mala fides, barred by limitation, and does not constitute offences under sections 403, 406 IPC, or section 73 of the Companies Act. The directors cannot be held vicariously liable for the acts of the companies. Consequently, the petitions are allowed, and the complaint is quashed.