TMI Blog2009 (3) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner including the complaint is quashed. In view of the aforesaid the bail bond, if any, of the petitioner will stand discharged. - CRL. M.C. 1777 OF 2005 - - - Dated:- 18-3-2009 - MOOL CHAND GARG, J. H.S. Phoolka, Vinod Kumar, Kanwar Faisal and Mohit Mudgil for the Applicant. Akash Pratap and Ms. S. Kohli for the Respondent. JUDGMENT 1. This is a petition filed under section 482 of the Code of Criminal Procedure (Cr. P.C.) seeking quashing of the complaint filed by respondent No. 1 in the Court of learned ACMM, Delhi under section 374 of The Companies Act, 1956. The only short point involved in this petition is as to whether the complaint filed by the respondents was barred by limitation and as such was liable to be dismissed. 2. The petitioner has been called upon to appear before the Court of ACMM to face the aforesaid complaint filed by the Registrar of Companies under section 200 Cr. P.C. disclosing commission of an offence under section 374 of the Companies Act, 1956 for 13-10-2004. It is submitted that the ACMM has taken cognizance of the alleged offence vide her order dated 21-7-2004 without application of mind and has passed the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 30 per cent of the subscribed equity share capital of the aggregate of paid up equity and preferential share capital of such other body corporate whichever is less. Thus it had made invest exceeding 30 per cent subscribed capital of invest company without previous approval of Central Govt. required under section 372(4) of the Act. As such all the accused have contravened the provisions of section 372(4) of the Companies Act, 1956 punishable under section 374 of the Companies Act 1956. Photocopy of the balance sheet as at 31-3-1993 is annexed as Annexure 3 to the complaint. 5. That no sooner the commission of the offence came to the knowledge of complainant, show-cause notice dated 19-5-2004 (copy marked as Annexure-4) to the complaint) was thereafter issued to the company and the accused. 6. That complainant most respectfully submits that in terms of the present complaint, offence under section 372 is punishable with fine only. In the absence of the instructions/sanction from the Department of Company Affairs, Shastri Bhawan, New Delhi, the complainant could not have filed the present complaint. Department of Company Affairs, Shastri Bhawan, New Delhi accorded its sanction on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment in the shares of any other body corporate in excess of the percentages specified in sub-section (2) and the proviso thereto, unless the investment is sanctioned by a resolution of the investing company in general meeting and unless previous approved by the Central Government : Provided that the investing company may at any time invest up to any amount in shares offered to it under clause ( a ) of sub-section (1) of section 81 (hereafter in this section referred to as rights shares) irrespective of the aforesaid percentages : Provided further that when at any time the investing company intends to make any investments in shares other than rights shares, then, in computing at that time any of the aforesaid percentages, all existing investments, if any, made in rights shares up to that time shall be included in the aggregate of the investments of the company. (5) No investment shall be made by the Board of directors of an investing company in pursuance of sub-section (2), unless it is sanctioned by a resolution passed at a meeting of the Board with the consent of all the directors present at the meeting, except those not entitled to vote thereon, and unless further notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter is justified and brings the complaint within limitation. 10. Coming to the judgments which have been relied upon by the petitioner I find that in the case of Vinod Kumar Jain ( supra ) it has been held "(4) The petitioner appeared in the trial Court in obedience to the process issued to him but he has challenged the legality and validity of the summoning order through this petition. (5) The learned counsel for the petitioner has at the outset assailed the cognizance of the complaint by the learned Additional Chief Metropolitan Magistrate on the ground that the complaint was hopelessly barred by time on the date it was presented and the learned Magistrate could not take cognizance of the same without first condoning the delay as envisaged in section 473 of the Code and that too after notice to the petitioner. Hence, the impugned order, according to him, is vocative of principles of natural justice. Moreover, it betrays total non-application of judicial mind with regard to the facts spelt out by the respondent-complainant in the application made by him under section 473 of the Code for condensation of delay. As pointed out by him, the cryptic order" and find prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasten to issue the process without first recording his satisfaction that the delay was satisfactorily explained to him or that he was of the view that the condensation of delay was in the interests of justice. It 19 highly doubtful that the court can condone the delay and thus extend limitation subsequent to the taking of cognizance of the offence. Of course, the condensation of delay may be implied from the act of the Magistrate in taking cognizance after the expiry of the period of limitation and proceeding with the case but the order must be clear and categorical in this respect. He has no power or authority to condone the delay provisionally or ex facie as has been seemingly done in the instant case. (9) In State of Punjab v. Sarwan Singh AIR 1981 SC 1054, the accused Sarwan Singh was convicted of an offence under section 406, Indian Penal Code, by the trial Court. However, on appeal having been preferred by him, the High Court set aside his conviction and acquitted him mainly on the ground that the prosecution launched against him was clearly barred by limitation under sections 468 and 469 of the Code. The State went in appeal by special leave to the Supreme Court bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granting prior permission. They have relied upon section 470(3) of the Cr. P.C. which reads as under : "470. Exclusion of time in certain cases. (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded. Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (3) Where notice of prosecution for an offence has been given, or where , under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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