TMI Blog2012 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... iness interests Limitation – Held that:- when a section 633(2) application is pending in the High Court, within the period of limitation, the Central Government should seek an injunction under section 470(2) of the Code of Criminal Procedure, instead of allowing limitation to set in, particularly so, when it follows the practice of not prosecuting an accused during the pendency of a section 633(2) proceeding. As the offences are minor and as no arguments were advanced in this behalf, petitioners ought to be discharged from the accusation on the ground of limitation. Since the petitioners are being discharged on the ground of limitation there is no need for the court to probe into the alleged offences. application is accordingly allowed by discharging the petitioners - COMPANY PETITION NO. 300 OF 2010 AND COMPANY APPLICATION NO. 532 OF 2010 - - - Dated:- 26-4-2011 - I.P. MUKERJI, J. Ranjan Deb and Ms. Manju Bhutoria for the Petitioner. Dipak Basu and Bhaskar Prasad Banerjee for the Respondent. JUDGMENT 1. This is an application under section 633(2) of the Companies Act, 1956. 2. The petitioners pray for being exonerated from the various alleged off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omoted the company's business interests. Hence, their presence was justified. 8. A very interesting point of limitation is raised. According to the petitioner all the alleged offences are barred by limitation. 9. The time prescribed by section 468 to take cognizance of the alleged offences indicated in the first show-cause notice, was one year. For the second and third show-cause notices it was six months as only a fine was involved. 10. The learned counsel for the Union of India, Mr. Bhaskar Prasad Banerjee, raised a point of considerable importance. He argued that the date of commencement of the period of limitation should be the date when the commission of the offence came to the knowledge of the Registrar of Companies. Furthermore, such date of knowledge should be from the date of issuance of the show-cause notice. 11. Section 469(3) of the Code of Criminal Procedure, inter alia , states that the period of limitation in relation of an offence shall commence, where, inter alia , the commission of the offence was not known to the person aggrieved by it, on the first day when such offence came to his knowledge. Other parts of this sub-section relate to the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such terms 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." 19. In my unreported judgment delivered on 5 April, 2011, in Company Petition No. 8 of 2010 and Company Application No. 5 of 2010, Bithal D Mundra v. Registrar of Companies , [2011] 164 Comp. Cas. 375/107 SCL 133 (Cal.), I held that the High Court under section 633(1) and 633(2) had the same power as the criminal court to relieve an alleged offender. The power to relieve includes the power to discharge an alleged offender when no cause of action against him is disclosed. The said provisions of the Act conferred a power upon the High Court to exonerate the accused if it appeared to it that he may be liable but had acted 'honestly and reasonably' and, furthermore, having regard to the circumstances he ought to be excused [ See section 633(1) of the Act]. Now, this power given to the High Court is part of the power given to it to relieve an accused. Such discretion is also vested in the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t takes such cognizance when, inter alia , a complaint petition is filed before it under section 190. Considering section 468, the Magistrate has the power under section 203 to dismiss the complaint on the ground of limitation. Therefore, the powers of the Magistrate under section 633(1) to exonerate the accused in case he is of the opinion that the accused is likely to have committed the offence but there are grounds for his exoneration are in my judgment in addition to his powers to take cognizance and proceed with the trial and not an isolated power. Therefore, the High Court is also invested with similar powers. First, to ascertain whether there is cause for proceeding with the complaint and then to consider whether the accused should be exonerated [ see SBI Home Finance Ltd. v Regional Director, Department of Company Affair (2007) 3 Comp. LJ 338 (Cal.): (2007) 138 Comp. Cas. 106 (Cal.) and Chandra Kumar Dhanuka v. Registrar of Companies (2008) 1 Comp. LJ 407 (Cal.): (2008) 141 Comp. Cas. 101 (Cal.)]". 21. I would elucidate upon my above judgment by clarifying that the power to relive includes the power to dismiss the complaint and to discharge the accused. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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