TMI Blog1969 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... pany on May 15, 1963, the company was required to be wound up voluntarily and the two respondents were appointed as liquidators of the company. The respondents had notified their appointment as the liquidators on June 20, 1963. By a letter dated November 7, 1963, the respondents on behalf of the company informed the Registrar of Companies that they have held the final meeting of winding up in accordance with section 208E of Indian Companies Act, 1913, on October 30, 1963, and that they have prepared all returns already and requested for a few days' time to file the returns with the complainant. In spite of several letters and reminders sent by the Registrar of Companies, Pondicherry, the respondents did not send returns; nor did they care to reply or take steps to comply with the requirements of the provisions of the Indian Companies Act. The two respondents have failed and neglected to file returns for the period from May 15, 1963, to March 14, 1964, and March 15, 1964, to March 14, 1965. Thereupon, a final notice was issued to the respondents on April 19, 1966, explaining therein the implications and stating that, unless they comply with the requirements, they would be prosecuted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spoken to in the complaint. When the respondents were questioned, the first respondent stated that he was in the hospital and, as he was not doing well, he could not submit returns in time. The second respondent stated that he could not submit returns as the account books were with the first respondent and as he was unwell. The learned First Class Magistrate acquitted the respondents on two grounds, namely, (1) that the Companies Act of 1913 was not in force on the date of the alleged contraventions as the Companies Act, 1956, had come into force by then and that, therefore, the prosecution under the Act of 1913 was unsustainable; and (2) that even assuming that the prosecution was sustainable, the respondents have to be relieved from their liability as they had no criminal intention in having contravened the provisions of the Act, by virtue of section 633 of the Companies Act, 1956. The learned Public Prosecutor contended that both the reasons given by the learned Magistrate for acquitting the respondents are incorrect and submitted that the prosecution under the provisions of the Companies Act, 1913, was saved by the repealing Act of 1956 and that, therefore, the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct I of 1956 came into force in Pondicherry territory, the prosecution was launched under the provisions of Act VII of 1913. The question, therefore, that arises now is whether after Act 1 of 1956 came into force in Pondicherry on October 1, 1963, the prosecution against the respondents is saved ? We have, therefore, to note the relevant provisions of repeals and savings in Act I of 1956 (hereinafter called "the Act"). Under section 644 of the Act, the enactments mentioned in Schedule XII were repealed. Section 645 saves orders, rules, etc., in force at the commencement of the Act. Section 646 saves the operation of section 138 of Act VII of 1913 as respects inspectors and the continuation of an inspection begun by inspectors, appointed before the commencement of the Act. Section 646 saves pending proceedings for winding up. Section 648, which is the relevant section in respect of our discussion, is as follows : " Saving of prosecutions instituted by liquidator or court under section 237 of Act VII of 1913. Nothing in this Act shall affect any prosecution instituted or ordered by the court to be instituted under section 237 of the Indian Companies Act, 1913 (VII of 1913), an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc., are saved unless a different intention appears. We have o consider, in view of the specific savings in respect of prosecution provided under section 648 of the Act, whether section 6 of the General Clauses Act can be invoked in respect of the present prosecution. It is a well-established principle that in applying the principle in respect of section 6 of the General Clauses Act and the savings sections of any special enactment, the line of enquiry should be not whether the new Act expressly keeps alive the old rights and liabilities but whether it manifests an intention to destroy them. It has to be ascertained whether there is any contrary intention in respect of savings in the new legislation. As already noted, section 648 of the Act specifically saved the prosecutions instituted by the liquidator or ordered by the court. This gives the indication that Parliament had specifically considered as to what should be saved and excluded the saving of the prosecution of any liability incurred before the commencement of the Act. The contrary intention is clearly expressed by specifically including only the proceedings which had resulted in prosecution. The pending prosecutions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 633(1) reads thus : "If in any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company, it appears to the court hearing the case that he is or may be liable in respect of the negligence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the court may relieve him, either wholly or partly, from his liability on such terms as it may think fit." Under this provision, it is not the criminal intention which is required for consideration. Obviously, negligence and default mentioned in section 633(1) will not involve criminal intention on the part of the person who is proceeded against for negligence or default. This section gives a discretion to the court to relieve the person proceeded against for those acts mentioned therein, provided the court finds that that person has acted honestly and reasonably and also the other circumstances of the case including the circumstances leading to the appointment of such person and, in doing so, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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