9911796707
TMI Blog2003 (3) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 146/628 of the Companies Act has been ordered to be put to the petitioners. 2. Brief facts leading to the presentation of this petition are that the complainant/respondent No. 1 (hereafter referred to as the complainant) filed a complaint against the petitioners and respondents 2 and 3 under sections 146 and 628 of the Companies Act, 1956. The case of the complainant as made out in the complaint is that as per the particulars filed with the office of the complainant-respondent No. 2 is a Company incorporated under the Companies Act having its registered office at Wood Land House, New Land Estate, Circular Road, Shimla and respondent No. 3 is its Managing Director and the petitioners are the Directors. It is statutory obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Additional Central Government Standing Counsel for the complainant and the learned counsel for the respondent Nos. 2 and 3 and have also perused the records. 5. The first accusation against the petitioners is that along with respondents 2 and 3, they violated the provisions of section 146 of the Companies Act, section 146 of the said Act reads as under : "146. Registered office of company.-(1) A company shall, as from the day on which it begins to carry on business, or as from the (thirtieth) day after the date of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office, and of every change therein shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation of the Company or after the date of the change in the situation of its office. In the event of default in complying the aforesaid requirements, every officer of the company who is in default shall be liable for punishment under sub-section (4) supra. Thus, the liability for prosecution and punishment is that of the officer of the company who is in default. 7. Section 5 of the Companies Act defines the "Officer who is in default" and reads as follows : "5. Meaning of 'officer who is in default'.-For the purpose of any provisions in this Act which enacts that an officer of the company who is in default shall be liable to any punishment or penalty, whether by way of imprisonment, fine or otherwise, the expression "officer who is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector or directors, who may be specified by the Board or in the absence of any Director having been so specified, all the Directors of the Company, shall be the officers in default. Therefore, all the Directors of the Company will be officers in default within the meaning of section 5 of the Act only when there is no Managing Director, whole time Director, Manager, Secretary, a person, charged by the Board with the responsibility of complying with the provisions of the Act and the Director/Directors specified by the Board under clause (g) of section 5. 9. In the case in hand, it is admitted case of the complainant, as per the contents of para 2 of the complaint, that respondent No. 3 is the Managing Director of respondent No. 2-Company. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Registrar vide Form 18 dated 13-7-1991 (Annexure 1). A perusal of Annexure 1 prima facie reveals that this form has been furnished by Vijay Kumar Gupta, petitioner No. 1. In case the information furnished vide Annexure P-1 is false evidently, this information has been furnished by petitioner No. 1, therefore, he being the person giving false information/statement about the situation of the head office of the Company-respondent No. (sic) is liable to be proceeded against under section 628 of the Companies Act. It is not the case of the complainant that the petitioners 3 and 4 are in any manner connected with the filing of the alleged false Form 18. Therefore, prosecution of petitioners 2 to 4 under section 628 of the Companies Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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