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2008 (12) TMI 402 - HC - Companies LawWinding up - Custody of company’s properties - Held that:- The Court is of the view that the Company and its Directors and/or Partners of M/s. Creamy Fashions, have all attempted to dispose off the properties of the Company in liquidation. No accounts were properly maintained nor they were filed with the Registrar of Companies. Fire was committed in 2002 and 2003. However, there is serious controversy about the extent of damage caused to the property and/or the destruction of datas, records, books of account etc. Accused No. 3 was untraceable since 2007. Accused No. 2 was taking the shelter that the accused No. 3 was maintaining books of account and he was to discharge all managerial functions. The statement of accused No. 2 recorded under Rule 130 of the Rules clearly revealed that he was not giving correct answers. Even an answer to the question as to whether the Company was ordered to be wound up, he said ‘no’ to it. In answer to the question as to upto which year the auditor accounts were filed with the Registrar of Companies, he said that since his elder brother was looking after all the legal and account section activity of the Company, he was not aware about the same, in an answer to the question as to who was the person responsible for affairs of the company, he gave the name of Shri Rajendra Natvarlal Dilkhush, the accused No. 3 herein residing at 56, Subhash Nagar Society, Surat. However, this accused No. 3 is not found despite several summons and warrants issued on him. He is stated to be non-traceable. Initially he filed affidavit on behalf of the Company in winding up petitions. Thereafter, he filed affidavit in the present proceedings. But, thereafter, when the matters are on the verge of finalization, he disappeared from the scene. This shows the conduct of the accused Nos. 2 and 3. There was a deliberate and systematic attempt to dupe the creditors, dispose off the assets of the company and commit a breach of discharging their statutory duties by non-filing of statement of affairs under the guise of reasonable excuse and facts and evidence found on record justifies this Court to take the view that the prosecution has discharged its burden to prove that there was no reasonable excuse which prevented the accused from filing the statement of affairs. The accused Nos. 2 and 3 are, therefore, liable to be punished under section 454(5) of the Companies Act, 1956. The judgments relied on by Mr. Jani would not render any assistance to the accused as they are distinguishable on facts.
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