PENAL PROVISIONS UNDER COMPANIES ACT, 2013 – PART III

[Mr. M. GOVINDARAJAN]

In this article the penal provisions under companies act (‘Act’ for short) other than the company and officer-in-default are listed for the reference of the readers.   This category contains many such director, Chartered Accountant, Company Secretary, Cost Auditor, Company Liquidator,  etc.,

Penal provisions relating to other ‘company’ and ‘officer-in-default’

1. Section 7 deals with incorporation of company.  Section 7(5) provides that if any person furnishing false or incorrect particulars of any information or suppresses any material information, of which he is aware of any of the documents with the Registrar in relation to the registration of a company, he shall be liable for action under Section 447 (which will be discussed in the later part of this article);
2. Section7(6) provides that if it is proved that the company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company, or by any fraudulent action, the promoters, the persons named as the first directors of the company and the persons making declaration under clause (b) of sub section(1) shall each be liable for action under section 447;
3. Section 8 deals with the formation of companies with charitable objects etc.,   Section 8 (11) provides that if a company makes any default in complying with any of the requirements laid down in this section, the Director shall be punishable with imprisonment for a term which may extend to 3 years or with fine which shall not be less than Rs.25,000/- but which may extend to Rs.25,00,000/-;
4. Section 26 deals with the matters to be stated in prospectus.   Section 26 (9) provides that if a prospectus is issued in contravention of the provisions of this section, every person who is knowingly a party to the issue of such prospectus shall be punishable with imprisonment for a term which may extend to 3 years or with fine which shall not be less than Rs.50,000/- but which may extend to Rs.3,00,000/- or with both;
5. Section 34(1) provides that where a prospectus issued, circulated or distributed under Chapter III includes any statement which is untrue or misleading in form or context of which it is included or where any inclusion or omission of any matter is likely to mislead, every person who authorizes the issue of such prospectus shall be liable under Section 447;
6. Section 35 deals with the civil liability for mis-leading statement in prospectus.  Section 35(3) provides that a prospectus has been issued with intent to defraud the applicants for the securities of a company or any other person or for any fraudulent purpose, every person as detailed below-

• Director of the company at the time of issue of the prospectus;
• Has authorized himself to be named and is named in the prospectus as a director of the company, or has agreed to become such director, either immediately or after an interval of time;
• Promoter of the company;
• Has authorized the issue of the prospectus; and
• Expert referred to Section 26(5)

Shall be personally responsible without any limitation of liability, for all or any of the losses or damages that may have been incurred by any person who subscribed to the securities on the basis of such prospectus;

7. Section 36 provides that any person who, either knowingly or recklessly makes any statement, promise or forecast which is false, deceptive or misleading, or deliberately conceals any material facts, to induce another person to enter into, or to offer to enter into-

• Any agreement for, or with a view to, acquiring, disposing of, subscribing for, or underwriting securities; or
• Any agreement, the purpose or the pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities; or
• Any agreement for, or with a view to obtaining credit facilities from any bank or financial institutions

Shall be liable to action under Section 447;

8. Section 38(1) provides that any person who-

• Makes or abets making of an application in a fictitious name to a company for acquiring or subscribing for, its securities; or
• Makes or abets making of multiple applications to a company to different names or in different combinations of his name or surname for acquiring or subscribing for its securities; or
• Otherwise induces directly or indirectly a company to allot, or register any transfer of, securities to him, or to any other person in a fictitious name

Shall be liable for action under Section 447;

9. Section 42 deals with an offer or invitation for subscription of securities on private placement.   Section 42 (10) provides that if a company makes an offer or accepts monies in contravention of this section, its promoters and directors shall be liable for a penalty which may extend to the amount involved in the offer or invitation to two crore rupees, whichever is higher;
10. Section 57 provides that if any person deceitfully personates as an owner of any security or interest in a company or of any share warrant or coupon issued in pursuance of this Act, and thereby obtains or attempts to obtain any such security or interest or any such share warrant or coupon, or receives or attempts to receive any money due to any such owner, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than Rs.1,00,000 but which may extend to Rs.5,00,000;
11. Section 58 deals with refusal of registration and appeal against such refusal.   Section 58 (6) provides that if a person contravenes the order of the Tribunal under this section, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 3 years and with fine which shall not be less than Rs.1,00,000/.- but which may extend to Rs.5,00,000/-;
12. Section 66 deals with the reduction of share capital.   Section 66 (10) provides that if any officer of the company-

• Knowingly concedes the name of any creditor entitled to object to the reduction;
• Knowingly misrepresents the nature of amount of the debt or claim of any creditor; or
• Abets or is privy to any such concealment or misrepresentation as aforesaid

He shall be liable under Section 447;

13. Section 89 deals with declaration in respect of beneficial interest in any share.  Section 89 (5) provides that if any person fails, to make a declaration as required under sub-section (1) or sub-section (2) or sub-section (3), without any reasonable cause, he shall be punishable with fine which may extend to Rs.50,000/- and where the failure is a continuing one, with a further fine which may extend to Rs.1000/- for every day after the first during which the failure continues;
14. Section 92 deals with Annual return.  Section 92 (6) provides that if a Company Secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made there under, he shall be punishable with fine which shall not be less than Rs.50,000/- but which may extend to Rs.5,00,000/-;
15. Section 102 deals with the statement to be annexed to notice.   Section 102 (5)  provides that if any default is made in complying with the provisions of this section, every promoter, director, manager or other key managerial personnel shall be punishable with fine which may extend to Rs.50,000/- or 5 times the amount of benefit accruing to the promoter, director, manager or other key managerial personnel or any of his relatives, whichever is more;
16. Section 105 deals with proxies.  Section 105(5) provides that if for the purpose of any meeting of a company, invitations to appoint as proxy a person or one of a number of persons specified in the invitation are issued at the company’s expense to any member entitled to have a notice of the meeting set to him and to vote threat by proxy, every officer of the company who knowingly issues the invitations as aforesaid or willfully authorizes or permits their issue shall be punishable with fine which may extend to Rs.1,00,00/-;
17. Section 117 deals with resolutions and agreements to be filed.    Section 117 (2) provides that if a company fails to file the resolution or the agreement under sub-section (1) before the expiry of the period specified under Section 403, the liquidator of the company, if any, shall be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
18. Section 127 provides that where a dividend has been declared by a company but has not been paid or the warrant in respect thereof has not been posted within 30 days from the date of declaration to any shareholder entitled to the payment of dividend, every director of the company shall, if he is knowingly a party to the default, be punishable with imprisonment which may extend to 2 years and with fine which shall not be less than Rs.1000/- for every day during which such default continues;
19. Section 128 deals with books of account, etc., to be kept by company.   Section 128(6) provides that if the Managing Director, the whole time director in charge of Finance, the Chief Financial Officer or any other person of a company charged by the Board with the duty of complying with the provisions of this section, contravenes such provisions, such persons shall be punishable with imprisonment for a term which may extend to 1 year or with fine which shall not be less than Rs.50,000/- but which may extend to Rs.5,00,000/- or with both;
20. Section 129 deals with financial statement.  Section 129 (7) provides that if a company contravenes the provisions of this section, the Managing Director, the Whole Time Director in charge of finance, the Chief Financial Officer or any other person charged by the Board with the duty of complying with the requirements of this section and in the absence of any of the officers mentioned above, all the directors shall be punishable with imprisonment for a term which may extend to 1 years or with fine which shall not be less than Rs.50,000/- but which may extend to Rs.5,00,000/- or with both;
21. Section 137 deals with the copy of financial statement to be filed with Registrar.  Section 137 (3) provides that if a company fails to file the copy of the financial statements the Managing Director and the Chief Financial Officer, any other director who is  charged by the Board with the responsibility of complying with the provisions of this section, and in the absence of any such director, all the directors of the company, shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/- or with both;
22. Section 140 deals with the removal, resignation of auditor and giving of special notice.  Section 140 (3) provides that if the auditor does not comply with sub-section (2),  he or it shall be punishable with fine which shall not be less than Rs.50,000/- but which may extend to Rs.5,00,000/-;
23. Section 143 deals with the powers and duties of auditors and auditing standards.   Section 143 (15) provides that if any auditor, cost accountant or company secretary in practice do not comply with the provisions of sub-section(12), he shall be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.25,00,000/-;
24. Section 147 deals with punishment for contravention.  Section 147 (2) provides that if an auditor of a company contravenes any of the provisions of Section 139, section 143, section 144 or section 145, the auditor shall be punishable with fine which shall not be less than Rs.25,000/- but which may extend to Rs.5,00,000/-;
25. The proviso to Section 147 (2) provides that if the auditor has contravened such provisions knowingly or willfully with the intention to deceive the company or its shareholders or creditors or tax authorities he shall be punishable with imprisonment for a term which may extend to 1 year and with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.25,00,000/-;
26. Section 148 deals with the Central Government to specify audit of items of cost in respect of certain compliances.   Section 148 (8) (b) provides that if any default is made in complying with the provisions of this section the cost auditor of the company who is in default shall be punishable in the manner as provided in Section  147 (2) to (4) (as at point No. 24);
27. Section 159 provides that if any individual or director of a company, contravenes any of the provisions of Section 152, Section 155 and Section 156, such individual or director of the company shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.50,000/- and where the contravention is a continuing one, with a further fine which may extend to Rs.500/- for every day after the first during which the contravention continues;
28. Section 165 deals with the number of directorships.   Section165 (6) provides that if a person accepts an appointment as a director in contravention of sub-section(1) shall be punishable with fine which shall not be less than Rs.5,000/- but which may extend to Rs.25,000/- for every day after the first during which the contravention continues;
29. Section 166 deals with the duties of directors.   Section 29 (7) provides that if a director of the company contravenes the provisions of this section such director shall be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
30. Section 167 deals with the vacation of office of director.   Section 167 (2) provides that  if a person, functions as a director, even when he knows that the office of director held by him has become vacant on account of any of the disqualifications specified in sub-section(1), he shall be punishable with imprisonment for a term which may extend to 1 year or with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
31. Section 173 deals with the meetings of Board.   Section 173 (4) provides that every officer of the company whose duty is to give notice under this section and who fails to do so shall be liable to a penalty of Rs.25,000/-;
32. Section 184 deals with disclosure of interest by director.   Section 184 (4) provides that if a director of the company contravenes the provisions of sub-section (1) or sub-section (2) such director shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than Rs.50,000/- but which may extend to Rs.1,00,000/- or with both;
33. Section 185 deals with loan to directors, etc.,   Section 185 (2) provides that if any loan is advanced or a guarantee or security is given or provided in contravention of the provisions of sub-section (1) the director or the other person to whom any loan is advanced or guarantee  or security is given or provided in connection with any loan taken by him or the other person, shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than Rs.5,00,000/- but which may extend to Rs.25,00,000/- or with both;
34. Section 188 deals with the related party transactions.   Section 188 (5) provides that any director or any other employee of a company, who had entered into, or authorized the contract or arrangement in violation of the provisions of the section shall-

• In case of listed company, be punishable with imprisonment for a term which may extend to 1 year or with fine which shall not be less than Rs.25,000 but which may extend to Rs.5,00,000/- or with both; and
• In case of any other company, be punishable with fine which shall not be less than Rs.25,000/- but which may extend to Rs.5,00,000;

35. Section 189 deals with Registrar of contracts or arrangements in which directors are interested.   Section 189 (6) provides that every director who fails to comply with the provisions of this section and the rules made there under shall be liable to a penalty of Rs.25,000/-;
36. Section 191 deals with the payment to director for loss of office, etc., in connection with transfer of undertaking, property or shares.   Section 191 (5) provides that if a director of the company contravenes the provisions of this section, such director shall be punishable with fine which shall not be less than Rs.25,000/- but which may extend to Rs.1,00,000/-;
37. Section 195 deals with the prohibition of insider trading of securities.   Section 195 (2) provides that if any person contravenes the provisions of this section, he shall be punishable with imprisonment for a term which may extend to 5 years or with fine which shall not be less than Rs.5,00,000/- but which may extend to Rs.25 crore rupees or three times the amount of profits made out of the insider trading, whichever is higher, or with both;
38. Section 197 deals with the overall maximum managerial remuneration and managerial remuneration in case of absence or inadequacy of profits.   Section 197 (15) provides that if any person contravenes the provisions of this section, he shall be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
39. Section 204 deals with Secretarial audit for bigger companies.   Section 204 (2) provides that if a any officer of the company or the Company Secretary in practice, contravenes the provisions of this section, the every officer of the company or the Company Secretary in practice, who is in default, shall be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
40. Section 207 deals with the conduct of inspection and inquiry.   Section 207 (4)(i) provides that if any director or officer of the company disobeys the direction issued by the Registrar or the inspector under this section, the director or the officer shall be punishable with imprisonment which may extend to 1 year and with fine which shall not be less than Rs.25,000/- but which may extend to Rs.1,00,000/-;
41. Section 217 deals with the procedure, powers etc., of inspectors.   Section 217 (6)(i) provides that if a director or an officer of the company has been contravened of an offence under this section, the director or the officer shall be punishable with imprisonment which may extend to one year and with fine which shall not be less than Rs.25,000/- but which may extend to Rs.1,00,000/-;
42. Section 217(8) provides that if any person fails without reasonable cause or refuses-

• To produce to an inspector or any person authorized by him in this behalf any book or paper which is his duty under sub-section (1) or sub-section (2) to produce;
• To furnish any information which is his duty under sub-section (2) to furnish;
• To appear before the Inspector personally when required to do so under sub-section (4) or to answer any question which is put to him by the inspector in pursuance of that sub-section; or
• To sign the notes of any examination referred to in sub-section (7)

He shall be punishable with imprisonment for a term which may extend to 6 months and fine which shall not be less than Rs.25,000/- but which may extend to Rs.1,00,000/- and also with a further fine which may extend to Rs.2,000/- for every day after the first during which the failure or refusal continues;

43. Section 229 provides that where a person who is required to provide an explanation or make a statement during the course of inspection, inquiry or investigation or an officer or other employee of a company or other body corporate which is also under investigation-

• Destroys, mutilates or falsifies, or conceals or tampers or unauthorisedly removes, or is a party to the destruction, mutilation or falsification or concealment or tampering or unauthorized removal of, documents relating to the property, assets or affairs of the company or the body corporate;
• Makes, or is a party to the making of, a false entry in any document concerning the company or body corporate; or
• Provides an explanation which is false or which he knows to be false,

He shall be punishable for fraud in the manner as provided in Section 447.

44. Section 238 deals with registration of offer of schemes involving transfer of shares.   Section 238 (3) provides that the director who issues a circular which has not been presented for registration and registered under clause (c) of sub-section (1), shall be punishable with fine which shall not be less than Rs.25,000/- but which may extend to Rs.5,00,000/-;
45. Section 243 deals with consequence of termination or modification of certain agreement.  Section 243 (2) provides that any person who knowingly acts as a managing director or other director or manager of a company in contravention of clause (b) of sub-section (1), and every other director of the company who is knowingly a party to such contravention, shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to 6 months or with fine which may extend to Rs.5,00,000/- or with both;
46. Section 247 deals with registered valuers.   Section 247 (3) provides that if a valuer contravenes the provisions of this section or the rules made there under, the valuer shall be punishable with fine which shall not be less than Rs. 25,000/- but which may extend to Rs.1,00,000/-;
47. The proviso to Section 247 (3) provides that if the valuer has contravened such provisions with the intention to defraud the company or its members, he shall be punishable with imprisonment for a term which may extend to 1 year and with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;
48. Section 251 (dealing with fraudulent application for removal of name) provides that where it is found that an application by a company under sub-section (2) of Section 248 has been made with the object of evading the liabilities of the company or with the intention to evade the creditors or to defraud other persons, the persons in charge of the management of the company shall, notwithstanding that the company has been notified as dissolved-

• Be jointly and severally liable to pay any person or persons who had incurred loss or damage as a result of the company being notified as dissolved; and
• Be punishable for fraud in the manner as provided in Section 447;

49. Section 267 provides that whoever violates the provisions of this Chapter or any scheme, or any order of the Tribunal or the Appellate Tribunal or makes a false or attempts to tamper with the records of reference or appeals filed under the Act, he shall be punishable with imprisonment for a term which may extend to 7 years and with fine which may extend to Rs.10,00,000/-;
50. Section 284 deals with promoters, directors etc., to co-operate with Company Liquidator.  Section 284 (2) provides where any person, without reasonable cause, fails to discharge his obligations he shall be punishable with imprisonment which may extend to 6 months or with fine which may extend to Rs. 50,000/- or with both;
51. Section 302 deals with dissolution of company by Tribunal.   Section 302 (4) provides that the Company Liquidator makes a default in forwarding a copy of the order within the period specified the Company Liquidator shall be punishable with fine which may extend to Rs.5,000/- for every day during which the default continues;
52. Section 314 deals with the powers and duties of Company Liquidator in voluntary winding up.   Section 314 (8) provides that if the Company Liquidator fails to comply with the provisions of this section, except sub-section (5) he shall be punishable with fine which may extend to Rs.10,00,000/-;
53. Section 316 deals with the Company Liquidator to submit report on progress of winding up.   Section 316 (2) provides that if the Company Liquidator fails to comply with the provisions of sub-section (1), he shall be punishable in respect of each such failure, with fine which may extend to Rs.10,00,000/-;
54. Section 318 deals with final meeting and dissolution of company.   Section 318 (8) provides that if the Company Liquidator fails to comply with the provisions of this section he shall be punishable with fine which may extend to Rs.1,00,000/-;
55. Section 336 deals with the offences by officers of companies in liquidation.   Section 336 (1) provides that if any person, who is or has been an officer of a company which at the time of the commission of the alleged offence, is being would up, whether by the Tribunal or voluntarily, or which is subsequently ordered to be wound up by the Tribunal or which subsequently passes a resolution for voluntary winding up, he shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 5 years and with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.3,00,000/-;
56. Section 336 (2) provides that where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under sub-clause (viii) of clause (d) of sub-section (1), every person who takes in pawn or pledge or otherwise receives the property, knowing it to be pawned, pledged or disposed of in such circumstances as aforesaid, shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 5 years and with fine which shall not be less than Rs.3,00,000/- but which may extend to Rs.5,00,000/-;
57. Section 337 provides that if any person, being at the time of commission of the alleged offence of an officer of a company which is subsequently ordered to be wound up by the Tribunal or which subsequently passes a resolution for voluntary winding up-

• Has, by false pretences or by means of any other fraud, induced any person to give credit to the company;
• With intent to defraud creditors of the company or any other person, has made or caused to be made any gift or transfer of, or charge on, or has caused or connived at the levying of any execution against, the property of the company; or
• With intent to defraud creditors of the company, has concealed or removed any part of the property of the company since the date of any unsatisfied judgment or order for payment of money obtained against the company or within two months before that date;

He shall be punishable with imprisonment for a term which shall not be less than 1 year but which may extend to three years and with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.3,00,000/-;

58. Section 339 deals with the liability for fraudulent conduct of business.  Section 339 (3) provides that where any business of a company is carried on with such intent or for such purpose as is mentioned in sub-section (1) every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be liable for action under Section 447;
59. Section 344 deals with the statement that company is in liquidation.   Section 344 (2) provides that if a company contravenes the provisions of this section, every officer of the company,  the Company Liquidator and any receiver or Manager, who willfully authorizes or permits the non-compliance, shall be punishable with fine which shall not be less than Rs.50,000/- but which may extend to Rs.3,00,000/-;
60. Section 347 deals with disposal of books and papers of the company.   Section 347 (4) provides that if any person acts in contravention of any rule framed or an order made under sub-section (3), he shall be punishable with imprisonment for a term which may extend to 6 months or with fine which  may extend to Rs.50,000/- or with both;
61. Section 348 deals with the information as to pending liquidations.   Section 348(7) provides that if a Company Liquidator makes willful default in causing the statement audited by a person who is not qualified to act as an auditor of the company, the Company Liquidator shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.1,00,000/-;
62. Section 447 deals with the punishment for fraud.   This section provides  that any person who is found to be guilty of fraud, shall be punishable with imprisonment for a term which shall not be less than 6 months but which may extend to 10 years and shall also be liable to fine which shall not be less than the amount involved in the fraud, but which may extend to 3 times the amount involved in the fraud;
63. Section 448 provides that if in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purposes of any provisions of this Act or the rules made there under any person makes a statement-

• Which is false in any material particulars, knowing it to be false; or
• Which omits any material fact, knowing it to be material,

He shall be liable under Section 447;

64. Section 449 provides that if any person intentionally gives false evidence-

• Upon any examination on oath or solemn affirmation, authorized under this Act; or
• In any affidavit, deposition or solemn affirmation, in or about the winding up of any company under this Act, or otherwise in or about any matter arising under this Act,

He shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and with fine which may extend to Rs.10,00,000/-;

65. Section 452 provides that if any officer or employee of a company-

• Wrongfully obtains possession of any property including cash of the company; or
• Having any such property including cash in his possession, wrongfully withholds it or knowingly applies it for the purposes other than those expressed or directed in the articles and authorized by this Act,

He shall, on the complaint of the company or of any member or creditor or contributory thereof, be punishable with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.5,00,000/-;

66. If any person or persons trade or carry on business under any name or title, of which the word ‘Limited’ or the words ‘Private Limited’ or any contraction or imitation thereof is or are the last word or words, that person or each of those persons shall, unless duly incorporated with limited liability, or may be, punishable with fine which shall not be less than Rs.500/- but may extend to Rs.2,000/- for every day for which that nature or title has been used;

Besides above penal provisions, general provisions applicable to all are there, which are listed as below:

1. Section 450 provides that if a company or any officer of a company or any other person contravenes any of the provisions of this Act or the rules made there under, or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any punishment is provided elsewhere in this Act, the company and every officer of the company who is in default or such other person shall be punishable with fine which may extend to Rs.10,000/- and where the contravention is continuing one, with a further fine which may extend to Rs.1,000/- for every day after the first during which the contravention continues;
2. Section 451 provides if a company or an officer of a company commits an offence punishable either with fine or with imprisonment and where the same offence is committed for the second or subsequent occasions within a period of 3 years, then that company and every officer thereof, who is in default shall be punishable with twice the amount of fine for such offence in addition to any imprisonment provided for that offence.