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2025 (4) TMI 18 - HC - Companies LawMoney Laundering - non disclosure of transaction in the Specified Bank Notes during the period 8th November 2016 to 30th December 2016 - contravention of section 129 along with section 448 of the Companies Act 2013 - HELD THAT - Section129 of the Companies Act 2013 deals with obligation of the company for laying down the Financial Statement to be furnished by the company which shall give a true and fair view of the State of affairs of the company or companies as per section 133 and as the necessary forms to be filled up per schedule III . In case of contravention by the company as per section 129 (7) the Managing Director the whole time director in charge of the finance The Chief Financial Officer or any other person charged by the Board with the duty of complying with the requirement of this section and in the absence of any officers mentioned above, all the directors shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not less than Rs/-50 thousand. It is pertinent to note that pursuant to the provision as enumerated in section 439 of the Companies Acts the specific bar has been imposed upon the court in taking cognizance of any offence under the companies act unless the complaint is filed by the Registrar of the company any shareholder (or a member) of the company or of a person authorised by the central government in that behalf .In this case the Deputy Registrar has filed the complaint and no such reason has been assigned by the court regarding such deviation when taking cognizance of the offence. The judgement relied on by the learned advocate of the petitioner reported in Usha Martin Telematics Limited and others vs-Registrar of companies West Bengal 2022 (7) TMI 15 - CALCUTTA HIGH COURT where Justice Ajoy Kumar Mukherjee questioned the role of the trial court regarding the satisfaction of the court about prima facie case against the accused person and about the grounds for proceeding against the accused person. In order to attract section 448 of the Company s Act the necessary ingredient must be false statement what would constitute Fraud as defined under section 447 of the Act. On bare reading of the petition of complaint the report of the Auditor for the period November 8 2016 to December 30 2017 the reason that the company did not provide the requisite disclosure of specified banknotes shows as as they were unable to provide details . However the complainant alleges against the present petitioner and his wife the petitioner of second revisional application for non-disclosure of the statement and arrayed them as accused in the petition of complaint. The petitioner gave a reply to the said letter of Complaint to the said complainant challenging the identity of the complainant - Mere divisions of one common family business with no third party being ever prejudiced by any stretch of imagination consequent to the option of any such non disclosure, if at all . The petitioner also prayed for withdrawal of the show cause notice issued but without any response. The proceedings being Complaint Case no. 43/2019 pending before the Learned 2nd Special Court Calcutta at West Bengal under section 129 /448 of the Companies Act appears to be bad in law and is liable to be set aside being not in accordance with law and is an abuse of the process of the process of law - Application allowed.
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