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TMI Blog2015 (3) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... s ordered to be issued to the respondent No.1, which also remained unserved with the further report that the respondent No.1 had sold the property and shifted to some other place. The petitioner filed an affidavit before this Court that it was not in possession of any other address of respondent No.1 and applied for substituted service of the respondent No.1 at his last known address. This Court, after recording its satisfaction that the respondent No.1 could not be served by ordinary process, directed service of the respondent No.1 by publication in the newspaper Statesman, Delhi Edition. The said publication stands affected. None has appeared for the respondent No.1 despite that also. The respondent No.1 is accordingly proceeded against ex-parte. We have heard counsel for the petitioner and have perused the record. 3. The petitioner has made this reference, pleading as follows:- (i) that the Managing Director of M/s Anghaila Housing Private Limited, Delhi filed a complaint dated 2nd September, 2004 with the petitioner with the following allegations against the respondent No.1 having Membership No. 009806 of the petitioner-Institute: (a) that the respondent No.1 was the Auditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off the assets of the complainant company; (i) that the complainant company also filed a petition before the Company Law Board challenging the filing of the documents and appointment of the aforesaid persons as Directors and the Company Law Board passed an order against the Directors so appointed by the respondent No.1; (j) that the respondent No.1 appeared before the Company Law Board on behalf of the Directors appointed by him and whose appointment was challenged in the said proceedings; (ii) that since the aforesaid charges made by the complainant company against the respondent No.1, if proved, would have rendered the respondent No.1 guilty of other misconduct under Section 22 read with Section 21 of the Act and Clause (7) of Part I and Clause (1) of Part II of Second Schedule to the Act, a copy of the complaint was forwarded by the petitioner Institute under cover of its letter dated 5th May, 2005 to the respondent No.1, eliciting the response of the respondent No.1 thereto, as required by Regulation 12(7) of the Chartered Accountant Regulations, 1988; (iii) the respondent No.1 submitted his response dated 21st May, 2005 and to which a rejoinder dated 22nd August, 2005 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report of the Disciplinary Committee; (viii) the petitioner Council on a consideration of the report of the Disciplinary Committee and the representation made by the complainant company accepted the report of the Disciplinary Committee and held the respondent No.1 guilty of professional misconduct as aforesaid within the meaning of Clause (7) of Part I and Clause (1) of Part II of Second Schedule to the Chartered Accountants Act, 1949; (ix) the petitioner Council has recommended to this Court that the name of the respondent No.1 be removed from the register of members maintained by the petitioner Council for a period of six months. 4. The complaint against the respondent No.1 having been made prior to the coming into force on 17th November, 2006 of the amendment of the Act, vide Section 21(D) of the Act, is to be governed by the Act as it stood prior to the said amendment. 5. The Disciplinary Committee of the petitioner gave the following reasons for holding respondent No.1 guilty as aforesaid:- (I) that the Economic Offences Wing of the Delhi Police, on the complaint of the complainant company had found that Sh. Sanjay Daksha, Sh. Sofi-ur-rehman, Sh. Binod Rajhans did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Law Board had further taken note of the fact that the shareholding of Ms. Mausumi Bhattacharjee of 1680 shares out of 3226 shares as per Form No.2 dated 17th November, 2000 filed with the Registrar of Companies had not been disputed. The Company Law Board had thus declared that Ms. Mausumi Bhattacharjee continued to be the Director of the complainant company and her purported resignation letter dated 1st August, 2001 and Form No.32 filed with the Registrar of Companies was null and void. (VII) The respondent no.1 has appended his signatures at various places on the Shareholders Register where the names of aforesaid Sh. Sanjay Daksha, Sh. Sofi-ur-rehman, Sh. Binod Rajhans appeared and the names of all the said three persons appeared to have been entered in the said Register at one time in the same hand; the appearance of the respondent no.1's signature on the Shareholders Register could not be co-related with the position of the respondent no.1 as Statutory Auditor of the company and the respondent no.1 was unable to explain the same. (VIII) That the Company Law Board had also concluded that the respondent no.1 was involved with mala fide intention to assist the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not commented on the fact that the company had not filed annual accounts and annual returns for continuous three financial years. (XVIII) That the respondent No.1 had failed to furnish any explanation for the aforesaid lapses. (XIX) That the respondent No.1 had thus failed to comply with Section 215(1) of the Companies Act, 1956 and was grossly negligent in conduct of his duties and of professional misconduct. 6. The petitioner Council accepted the aforesaid reasoning of the Disciplinary Committee and held the respondent No.1 guilty of professional misconduct as aforesaid and has recommended that the name of the respondent no.1 be removed from the register of members for a period of six months. 7. We are satisfied that the prescribed procedure has been followed in the conduct of the complaint of professional misconduct against the respondent no.1. We, on perusal of the material placed before us, are also satisfied with the reasoning aforesaid recorded by the Disciplinary Committee of the petitioner institute for holding the respondent No.1 guilty as aforesaid. We also find the punishment recommended by the petitioner Council to be proportionate to the misconduct of which the ..... 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