TMI Blog2015 (6) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act mentions that only the directors who are knowingly a party to the default are liable for the offence. There is no allegation as to which director was knowingly party to default. Also In the complaint no averments have been made as to whether the non recipients of the dividend were the shareholders of the Company as the copy of the share certificate were not placed on record. In the absence of primary evidence no offence can be deemed to have been made out. Another valid reason assigned by the petitioner is that the charges have not been framed for more than 12 years after filing of the complaint by respondent No.1.In view of foregoing reasons, the petitioners have been able to make a strong case for quashing of proceedings due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aints of non receipt of dividend by some investors. It is further alleged by the petitioners that in the absence of any instruction/directions from the Department of Company Affairs the complaint could not have been filed in the Court. The necessary direction was accorded on 31st January, 1999 and the complaint could only be filed on 3rd November, 1999. It was also averred that the provision of Section 468 Cr.P.C is not applicable as offence is of a continuing nature. 4. It is argued on behalf of the petitioners that from the allegations made by respondent No.1, no case is made out against the petitioners on account of the reasons that (a) the complaint of the respondent is squarely covered under the provision of Section 468 Cr.P.C which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate, every partner in the firm and every director of the body corporate; and where the secretaries and treasurers are a firm, every partner in the firm and where they are a body corporate, every director thereof; shall, shall if he is knowingly a party to the default, be punishable with simple imprisonment for a term which may extend to seven days and shall also be liable to fine. 6. From the foregoing provision and averments made in the present petition, it is clear that respondent No.1 ought to have filed the complaint within one year of occurrence of the alleged offence whereas the respondent No. 1 has actually filed the complaint after three years and as such the complaint is hopelessly time barred. 7. As per the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 473 Cr.P.C, cognizance of an offence cannot be taken by mere filing of the complaint. 9. Section 5 of the Act provides that the liability in respect of offences committed under the Act devolves upon the officer in default but the respondent No.1 has not mentioned the name of officer in default. It has arrayed all the directors including directors who had resigned before the alleged declaration of dividend for the year 1995-96. Section 207 of the Act mentions that only the directors who are knowingly a party to the default are liable for the offence. There is no allegation as to which director was knowingly party to default. In the complaint no averments have been made as to whether the non recipients of the dividend were t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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