TMI Blog1984 (3) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as "the Act". By his order, dated November 3, 1978, the learned Magistrate took cognizance upon the same, issued process against the accused and transferred the case to the learned Metropolitan Magistrate, 11th Court, Calcutta, for disposal. After entering appearance, one of the accused, Sri Sanatan Ganguly, filed an application under section 633(1) of the Act for being relieved of his liability, as a director of the company, in respect of the offence alleged against him. In his application he contended, inter alia , that the other directors were inimically disposed towards him and in spite of his best efforts he could not persuade them to comply with the requirements of section 210(1) and (3) of the Act, for which the prosecution had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it may think fit: Provided that in a criminal proceeding under this sub-section, the court shall have no power to grant relief from any civil liability which may attach to an officer in respect of such negligence, default, breach of duty, misfeasance or breach of trust." A plain reading of the above section will unmistakably show that it provides for a special remedy, inter alia , to a person who is being prosecuted in a criminal court for having committed an offence under the Act. Normally, when a person is arraigned in a criminal court for an offence, the proceeding has to end in an order of conviction, acquittal or discharge ; and if the case ends in conviction the accused is liable to be punished for such conviction unless he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Code of Criminal Procedure. I am, however, unable to accept this contention having regard to the language of section 4(2) of the Code and that of section 633(1) of the Act. Under section 633(1), it has to appear to the court that the officer of the company in question "is or may be liable in respect of the negligence, default........."and the court has also to find that "he ought fairly to be excused" before the court can relieve him of the liability. It will thus be seen that unless the liability of the person is fixed or, in other words, the court finds that he is guilty or may be guilty, the court cannot invoke the said provision. This position has been made abundantly clear by the words "he ought fairly to be excused". The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence adduced during trial, including the evidence that may be adduced by the accused who files the application under section 633(1) of the Act. This is all the more necessary as, under the Code, the court's finding as to whether an offence has been committed or not has to be based on evidence to be adduced through examination of witnesses, except where provision has been expressly made in the Code to adduce such evidence through affidavits, namely, sections 295 and 296 of the Code. Since, in the instant case, the application under section 633(1) of the Act was disposed of only on the basis of the averments made therein and the objections thereto, I am unable to sustain the order. I, therefore, set aside the impugned order and dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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