TMI Blog1999 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... gularities/breaches, i.e., delay in registering the shares/debentures and remitting to the transferee. ( a )10,000 (wrongly mentioned as 1,10,000) shares lodged on 7-8-1990 were despatched on 9-10-1990-A/c UTI. ( b )12 Non-convertible debentures lodged on 30-11-1990 despatched on 20-2-1991-A/c UTI. ( c )270 Non-convertible debentures lodged on 15-11-1990 transferred on 28-10-1991 (date of despatch not available) - A/c UTI. These are alleged to be offences under section 113(1) and punishable under section 113(2) of the said Act. A show-cause notice dated 4-8-1992 was served on the petitioners Nos. 1 and 3. (Petitioners have alleged that a reply dated 10-8-1992 was sent.) The complaint was filed before the ACMM on 5-11 -1992 who took cognizance and summoned the petitioners. The petitioners are seeking quashing of the said proceedings. I have heard the learned counsel for the parties. 3. First plea is that the complaint is barred by limitation under section 468 read with section 469 of the Code, as it has been filed after six months of the offence. The learned counsel for the State has contested this and has contended that the complaint has been filed on behalf of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od any default in complying with the provisions of sub-section (1), fails to make good the default within ten days after the service of the notice, the Company Law Board may, on the application of the person entitled to have the certificates or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order; and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of the company responsible for the default." As this case is about transfer of the shares/debentures, the period for registration of the transfer is two months on receipt of application made according to the procedure laid down under section 53 of the Act for such transfer. As mentioned in the complaint, shares are alleged to have been lodged on 7-8-1990; 12 non-convertible debentures were lodged on 30-11-1990 and 270 non-convertible debentures were lodged on 15-11-1990. Assuming these as the correct dates when the shares and debentures were actually delivered to the petitioner-company, the registration/transfers under section 113 should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made application for the registration of transfer in their name is the aggrieved person if its shares etc. were not registered and transferred in its name within time and not the Registrar of the Companies. 7. Similar question came for consideration before the Madras High Court in the case of Sulochana ( supra ) relied on behalf of the petitioners. In that case, the petitioner was conducting chit funds, one of the subscribers reported to the Registrar of Chits (Investigation and Prosecution), Madras ('the Registrar') on 27-3-1976 that the petitioner had not paid the chit amount due to her. During investigation, the Registrar found that the petitioner had conducted the chit without registration of the bye-laws and without obtaining a certificate of commencement of business, which was in contravention of sections 3 and 7 of the Tamil Nadu Chit Funds Act, 1961 punishable under section 56(1) of that Act. Consequently, the Registrar filed a complaint on 9-6-1976 before the Metropolitan Magistrate, Madras for that offence. The question before the learned Judge was whether the Registrar could be termed as a 'person aggrieved' by the offence alleged to have been committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations made in the compliant are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3)where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4)where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of complaint by legally competent authority and the like." In category (4), a complaint could be quashed if it suffers from fundamental legal defects such as want of sanction, or absence of complaint by legally competent authority and the like. The period of limitation would be one of the circumstances on which a complaint could be quashed. 10. The scope and object of prescribing bar of limitation under section 468 has been considered in State of Punjab v. Sarwan Singh AIR . 1981SC 1054 wherein it has been observed as under: "This object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. As regards transfer of 270 non-convertible debentures, it is alleged in this reply that these debentures were lodged with their Registrar-cum-Transfer Agents on 12-1 -1991 as per endorsement made about lodgement and not on 15-11-1990, and that these debentures were transferred on 28-2-1991. Again the correctness of this statement has not been verified and no material has also been placed on record either to rebut this statement or to show that these debentures were actually lodged on 15-11-1990 and not on 12-1-1991. As regards 12 non-convertible debentures which perhaps formed part of bigger lot of 1,000 debentures, it is alleged that the letter dated 30-11-1990 from Stock Holding Corporation of India Ltd, Bombay, (apparently the agents of UTI), was addressed to SRG Financial Management Consultants (P.) Ltd., Qutab Road, New Delhi who were not Registrar and Transfer Agents for debentures of the petitioners. This fact also has not been rebutted by any reliable material nor any material has been placed on record to show that these debentures were lodged with the company or its duly authorised agent on 30-11 -1990. When before any action is taken a show-cause notice is given, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, in my view, it is a fit and proper case to exercise inherent power to quash the proceedings. Even otherwise, the offence is too trivial and the aggrieved person, that is the UTI, has not though it proper to make a grievance of the defaults, if any, on the part of the petitioners. 13. In Hindustan Steel Ltd v. State of Orissa AIR 1970 SC 253, there was failure to register as a dealer under the Sales tax Act which could entail penalty. However, it was held that the imposition of penalty will not be always necessary. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circum stances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act. In the facts and circumstances, it seems, it would be a futile exercise to pursue the proceedings. 14. For all these reasons this petition is allowed. Complaint filed by res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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