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2020 (8) TMI 113 - HC - Companies LawPenalty u/s 383(1A) of the Companies Act, 1956 - non-application of mind - the company did not have a Whole-time secretary - order passed only on the basis of a bare complaint without any supporting documents - allegation is that despite having share capital of more than ₹ 50 lacs as on 31.03.1996, the company did not have a Whole-time secretary from 18.09.1997 - HELD THAT:- The respondent in this case as well, chose to file the criminal complaint without any supporting documents despite referring to them in the body of the complaint - A perusal of the complaint would show that in Para 4, it was stated that the criminal complaint had been filed only on the basis of an Inspection Report, conducted at the behest of the respondent which revealed the alleged contravention. However, neither the contents of any Inspection Report were reproduced in the complaint nor the same was filed along with the complaint. Learned ACMM, while passing the order on summoning had completely overlooked this aspect that not only the Inspection Report, which was stated to be the very basis of filing the complaint, was not filed, but the other supporting documents mentioned in the complaint were also not placed on record. This non application of mind continued when, again in absence of the above referred documents, ld. ACMM framing the notice under S. 251 Cr.P.C. against the petitioners. The respondent was well aware of the objections raised in the earlier petition but still remained in a state of inertia and did not bring on record the requisite documents for 9 years despite being in possession of those document for all these years. It is not a case of inadvertence but rather sheer continued negligence which has caused serious failure and prejudice to the petitioners - The application of mind at the time of taking cognizance and framing of notice is sine qua non. In the opinion of this Court, the impugned order of framing of notice and the earlier order of summoning were passed mechanically & in a perfunctory manner without any application of judicial mind either to the facts or to the records of the case. Accordingly, in the facts and circumstances of the case, the petition deserves to be allowed on this ground only and the other grounds raised need not be gone into. Petition allowed.
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