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2021 (9) TMI 817 - HC - Companies LawProsecution proceedings - NBFC or not - Inadvertent/typographical error in recording of minutes - it was erroneously recorded in item no. 12 of the minutes that the company submitted application with the Reserve Bank of India for its deregistration as NBFC and registration as a CIC - however, the company was not a registered Non Banking Financial Company (NBFC) at the relevant time - sections 118(2) and (7) read with sections 447/448 of Companies Act - HELD THAT:- The key ingredient of the offence is the intent to deceive, gain undue advantage or injure the interest of the company or any person connected thereto. In the case in hand, the complaint lodged by the opposite party does not prima facie reflect such intent on the part of the petitioners. Per contra, though the opposite party has referred to the notice of show cause in the complaint, the reply to the said notice given by the petitioners is conspicuously absent therein. It is also inconceivable that the inspection was held sometime in 2018 and the notice to show cause signed on 24th August, 2018 whereas the instruction of the Ministry to launch prosecution for such violation was issued on 7th December, 2017, i.e., preceding the inspection. The complaint does not prima facie make out an offence under sections 118(2) and (7) read with sections 447/448 Act of 2013. Typographical/inadvertent error in recording of minutes rectified subsequently can under no stretch of imagination be termed as an offence, far less an offence under the provisions of the Act of 2013 as alleged. That the petitioners acted with a malafide intention to deceive, gain undue advantage or injure the interest of the company or any person connected thereto is not reflected in the four corners of the complaint. Allowing the proceeding to continue shall be a futile exercise and abuse of the process of law in view of the fact that the inadvertent error has been sufficiently and adequately explained and does not call for any prosecution. The proceeding in respect of complaint case no. 15 of 2018 is liable to be quashed - Application allowed.
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