TMI Blog1994 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner under section 73 - Whether in view of provisions of section 621 Court could take cognizance of any offence under section 73 only if complaint was filed in writing by Registrar or by a shareholder of company or by a person authorised by Central Government in that behalf and since respondent was neither a shareholder nor he was authorised by Central Government to file complaint, it was liable to be quashed - Held, yes - Whether a person who is simply a director can be prosecuted under section 73 - Held, no - CRL. MISC. PETITION NO. 4041M OF 1993 - - - Dated:- 31-3-1994 - H.K. SANDHU, J. JUDGMENT 1. Shri S.C. Bhatia, director, Indana Spices Food Industries Ltd., 72, Janpath, New Delhi, has filed this petition under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no interest was paid for this period in spite of various letters written to the company. The director of the company violated the provisions of sub-section (2A) of section 73 of the Act and was liable for action under sub-section (2B) of that section. 2. After hearing the counsel for the complainant and going through the record, Chief Judicial Magistrate, Chandigarh, summoned the present petitioner to stand trial for an offence under section 73. 3. The petitioners alleged that the complaint Annexure P/7 was an abuse of the process of law having been filed with a malicious intention to tarnish the image of the company in the eyes of general public and the respondent had no locus standi to file the same. The complaint could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by a company of any of its officers. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), where the complainant under sub-section (1) is the Registrar or a person authorised by the Central Government, the personal attendance of the complainant before the court trying the offence shall not be necessary unless the Court for reasons to be recorded in writing requires his personal attendance at the trial. (2) Sub-section (1) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters included in Part VII (sections 425 to 560) or any other provisions of this Act relating to the winding up of companies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of winding up of a company. 7. The respondent contended that whereas all other acts which provide for criminal prosecution referred to the offences under the Act, section 621 provides for offence against the Act. So section 621 was not attracted and he was competent to file a complaint for an offence punishable under section 73. This submission of the respondent is, however, not valid. The only grouse of the complainant was that the company had failed to refund his money within time period stipulated under section 73 and, therefore, the company had committed an offence by acting against the mandatory provisions of section 73(2A) punishable under section 73(2B). The words 'against the Act' or 'under the Act' connote the same meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors: Provided that where the Board exercises any power under clause ( f ) or clause ( g ), it shall, within thirty days of the exercise of such powers, file with the Registrar a return in the prescribed from." The petitioner does not fall in any of the categories mentioned in the above section. He is neither a managing director nor a whole-time director nor manager nor secretary. In order to prosecute the petitioner, it was necessary for the respondent to mention in the complaint whether the petitioner was a managing director or a whole-time director as it is only those two types of directors who could be termed as 'officer in default'. A person who is simply a director cannot be prosecuted under section 73. In the instant case nei ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
