Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2016 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (8) TMI 792 - HC - Companies LawOffences punishable u/ss.209(5) r/w.Sections 211(7) and 628 of the Companies Act for non-maintenance of proper books of accounts - Held that:- The petitioner is a practicing advocate and it is his main vocation. Incidentally, he might have accepted Directorship, but merely he is a formal Director, no process can be issued against him unless specific allegation has been made against him in the complaint or primafacie ingredients of the offence has been established against him. Here in this case, it is established from the complaint itself that, though the present petitioner has been named as an accused in the said complaint, neither there is specific allegation made nor prima-facie ingredients of the offence established from the said complaint against the petitioner. It seems that he has been joined as an accused in the said proceedings merely because he is a formal Director in the Company. In absence of any specific averments or ingredients in the complaint against the petitioner, the process issued against the petitioner requires to be quashed. A plain reading of Section 211(7) and 209(5) of the Act would go to show that the default is punishable with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to ten thousand rupees, or with both. Section 628 provides for punishment with imprisonment, which may extend to two years and shall also be liable to fine. It is not in dispute that the alleged contravention with regard to the maintenance of Registers of Directors are for a period spanning from 1997-98 and 1998-99. The complaint came to lodged in the year 2006 The question which falls for my consideration is whether the learned Magistrate could have taken cognizance of the alleged offence, after the expiry of the period of limitation as provided under Section 468 of the Code of Criminal Procedure. Section 468 provides that the period of limitation shall be six months, if the offence is punishable with fine only, and three years if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years. Having regard to the nature of the contravention, it could not be said that the Sections 211(7), 209(5) and 628 of the Companies Act are continuing offences so that the period of limitation would keep on running. What is continuing offence has been exhaustively explained by this Court, while disposing of Special Criminal Application No. 809 of 2014 today itself. In view of above facts and circumstances, the Special Criminal Applications are allowed. Thereby, the criminal proceedings of Criminal Complaint against the applicant pending before the Court of learned Addl. Chief Judicial Magistrate, Ahmedabad are hereby ordered to quashed.
|