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2019 (8) TMI 1593 - HC - Companies LawCalling of records relating to the letter of the third respondent - declassification of petitioner from the List of Wilful Defaulters - HELD THAT:- Section 149(6) prescribes the qualification of the Independent Director of a Company and it further distinguishes the Independent Director from the Managing Director or Whole-time Director or a Nominee Director of a Company. Section 149(12) deals with the responsibility and liability of the Independent Director. Clause 2.5 of the Master Circular of Reserve Bank of India, dated 01.07.2015, refers to penal measures to be initiated by the banks and financial institutions, after a person is declared as a 'wilful defaulter'. Clause 3, prescribes, mechanism for identification of Wilful Defaulters - Section 149 (12) of the Act makes it very clear that an Independent Director shall be held responsible only in respect of such acts of commission or omission by a Company which occurred with his knowledge, consent or connivance, but in the matter on hand, it is apposite to note that no materials have been brought on record to show that the petitioner actively participated in the day-to-day affairs of the Company or in the Board Meeting and the commissions and omissions alleged against the Company had taken place with the knowledge, consent or connivance of the petitioner to satisfy the ingredients of Section 149(12) of the Act. It is to be seen that the persons identified as wilful defaulter have to meet the consequence of the subsequent proceedings to be initiated by the Banks and Financial Institutions in tune with the Master Circular 2.5. Therefore, unless the allegations are supported by material documents, no one can be declared as a 'wilful defaulter'. It is settled position of law that the penal provisions requires strict proof and it cannot be permitted to be exercised in a casual manner - It is to be further seen that the Wilful Defaulter Identification Committee of the State Bank of India, after perusing the entire records came to the conclusion that they are not sufficient to declare the petitioner as a 'wilful defaulter'. In the case on hand, there is absolutely no evidence available to declare the petitioner as a 'wilful defaulter'. Moreover, the explanation offered by the petitioner was not considered and the decision was taken against the provisions of the Act and Clause 3 of the Master Circular issued by the Reserve Bank of India. Petition allowed.
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