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2021 (1) TMI 854 - HC - Indian LawsScope of the bar of cognizance imposed under Section 439(2) of the Act of 2013 - Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other or not - proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013. Whether the application in IA No.2/2020 under Order VI Rule 16 of CPC is required to be allowed? - HELD THAT:- The averments made and the documents produced therein cannot be said to prejudice or delay the matter inasmuch as the above petition having been filed on 4.08.2020, the respondent having entered appearance and filed its objections on 3.10.2020, the above matter was taken up on 20.11.2020, 2.12.2020, 14.12.2020, 17.12.2020, 18.12.2020, when it did not reach on account of paucity of time, it was however taken up for hearing on 22.12.2020 at the request of both the counsels. Thus, there cannot be said to be any delay on account of the rejoinder the matter was taken up for final disposal at the request of both the counsels on 22.12.2020, the rejoinder having been filed on 11.12.2020 - the filing of the rejoinder and production of documents would not cause any abuse of process of the court. Whether Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other? - HELD THAT:- The requirement of prior sanction under the Prevention of Corruption Act is to protect an officer against unnecessary prosecution during the time that he was discharging his function as an officer of the State, in such situation it is mandated that prior sanction from the concerned authority has to be obtained which authority would apply its mind to the facts and come to a conclusion as to whether the proceedings are to be initiated or not - the same cannot be equated to authorised person under Section 439. There is a specific prohibition to the Court to take cognizance except upon a complaint in writing by the registrar, a shareholder of the company or a person authorised by the Central Government in that behalf. Admittedly, the respondent is neither the Registrar nor a shareholder nor has he obtained any authorisation from the Central Government. Therefore, the respondent would not in my considered opinion have any locus to initiate penal proceedings under Section 439 of the Act of 2013 or even if he initiates any action, the court dealing with such a matter cannot take cognizance of such a complaint - the Act of 2013 being a Special enactment containing a specific embargo, the embargo is required to be given complete effect to by this Court. This Court cannot travel beyond the intention of the legislature and water down the requirements of Section 439 - the finding of the Special Economic Court in its order dated 3.7.2017 was proper and correct. Section 19 of the Prevention of Corruption Act and Section 439 of Act of 2013 are not pari materia with each other. Whether any person can file a proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013? - HELD THAT:- Apart from the named persons a complaint can also be filed by a person authorised by Securities and Exchange Board of India in terms of the proviso (1) of Section 439(2) or the Official Liquidator in terms of Section 439(4), no other person can initiate any criminal proceeding against a company for the offence committed under the Act of 2013. Whether the order of Revisional court dated 3.07.2020 requires any interference? - HELD THAT:- It is reiterated that it is not the qualification of the accused or the designation of the accused or status of the accused which is of relevance under Section 439(2) of the Act of 2013. Therefore, it is not relevant to consider whether the accused were directors or continue to be the directors as on the date of filing of the complaint. The Rivisional Court completely misdirected itself in this regard by adverting to the qualification of the accused rather than the qualification of the complainant. Petition allowed.
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