TMI Blog1981 (2) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 295 of the Companies Act. It appears from the affidavit-in-opposition that the respondent, on 12th June, 1980, filed a petition of complaint before the Chief Metropolitan Magistrate, Calcutta, and it was adjourned till 4th November, 1980, due to congestion in the diary of the said Chief Metropolitan Magistrate. It also appears that prior to the said application by the respondent before the Chief Metropolitan Magistrate a notice dated 12th May, 1980, was served on petitioners Nos. 1 to 4 by the Registrar of Companies, West Bengal, pointing out about the contravention of section 295 of the Companies Act, 1956, giving particulars of the loans and the amounts and asking for a reply to that notice or show cause within 15 days from the date of the said notice. The company, by its letter dated 27th May, 1980, replied to the said notice of the Registrar, inter alia, stating that as soon as the said contravention was brought to the notice of the company's director concerned, she submitted her resignation from the company which was accepted by the Board on 29th September, 1979, and a return to that effect was filed with the Registrar of Companies, West Bengal, and the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, in the facts and circumstances of the case, the petitioners should be relieved from the consequence of default and there should be injunction against the respondent from taking any criminal proceedings against the petitioners. Now, the point arose as to whether the application under section 633 is maintainable after the said complaint has been filed and cognizance of the same being taken by the Metropolitan Magistrate and if so as it is admitted that under sub-section (2) of section 633 it is only at the stage of apprehension of any criminal proceedings, this court has jurisdiction to issue an order under sub-section (1) of section 633 relieving the defaulting officers and directors of the company from the consequence of the default in the facts and circumstances of the case if the court is satisfied in this particular case. There cannot be any doubt that, in the facts and circumstances of this case, it must be held that the offence, if any, has been made good by repayment of the loan and the director concerned has also resigned from the Board which has been accepted. Therefore, the offence, no longer is continuing and it has been made good and, in the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings before Magistrates." "Section 204(1). If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to tie ( a )a summons-case, he shall issue his summons for the attendance of the accused, or ( b )a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint." Then section 468 : "468(1). Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in subsection (2), after the expiry of the period of limitation. 2 The period of limitation shall be ( a )six months, if the offence is punishable with fine only; ( b )one year, if the offence is pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under section 473 of the Cr. PC for condoning the delay, which was filed on 12th June, 1980, and the delay was condoned by the order dated 4th November, 1980, and the offence was taken cognizance of by the Chief Metropolitan Magistrate and the case was transferred to the Metropolitan Magistrate, 17th Court. It is strange that in the said affidavit it is not mentioned that the order condoning the delay and taking cognizance of the alleged offence was passed on 4th November, 1980, and not on 12th June, 1980, as would appear from the photostat copy of the order sheet. Again in para. 22 of the said affidavit it is repeated that the present petition was moved by the petitioners on or about 2nd July, 1980, whereas the criminal case was initiated on 12th June, 1980, before the learned Chief Metropolitan Magistrate and as such this court has no jurisdiction to stay the criminal proceeding and has no power to grant any relief to the petitioners and the present petition is misconceived and not maintainable in law. It appears, the said affidavit is not only misleading but incorrect facts are stated, which is clear from the photostat copy of the order sheet and the records of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this petition which was filed on 28th June, 1980, and an ad interim injunction was passed on 2nd July, 1980. Therefore, the said petition of complaint was filed in violation of the injunction order and cognizance of the offence was taken by the Magistrate during the period when the injunction was in force and operative against the respondent. Therefore, the said proceeding is bad and a nullity according to the well-known principle that anything done in violation of the injunction order is of no effect and non est. Mr. Mukherjee drew my attention also to a decision in Krishna Sanghi v. State of Madhya Pradesh [1977] Cri LJ 90, where a Single Bench of the Madhya Pradesh High Court, dealing with an application for condonation of delay in filing a criminal complaint, observed that after the delay is condoned by the court on its being satisfied in the manner as mentioned in the said decision, then alone it would register the case and proceed with the same in accordance with law. Before condoning the delay, according to the principles of natural justice, the accused persons must be heard before passing an order in the record, inasmuch as the order is bound to affect the valuable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es [1978] 48 Comp. Cas. 397 (Delhi), where, from the judgment it appears, the initiation and cognizance of the offence before the proceeding under section 633(2) of the Companies Act was admittedly pending and, therefore, it was held that the court had no jurisdiction to grant any relief under section 633(2) as the criminal proceeding was pending and there was no question of apprehension of criminal proceeding. Therefore, the said case and also from the judgment it is not quite clear whether the questions which have arisen in this case were before the Delhi High Court, which was a Single Bench, or not. Mr. Sunil Mukherjee, appearing for the Registrar, submitted relying on the said decision in [1978] 48 Comp. Cas. 397 (Delhi), that this court has no jurisdiction and, in the facts and, circumstances of this case, the application should be dismissed. I am of the view that there is no substance or merit in the contention raised on behalf of the respondent as the said criminal proceeding is clearly in violation of the order of injunction passed by this court and it is strange enough that before the criminal court the respondent has not brought to the notice of the court the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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