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TMI Blog2019 (8) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 (hereafter 'the Rules') and the petitioner was informed of the same. The said opinion was recorded on 24th September, 2018 and the Director (Discipline) was of the prima facie view that respondent no.3 (Jayesh M. Gandhi - hereafter 'JMG') was not guilty of professional misconduct falling under Clause 7 of Part-I of Second Schedule to the Chartered Accountants Act, 1949 (hereafter 'the Act'). 2. JMG is a member of ICAI and is a practicing Chartered Accountant. The petitioner, inter alia, alleges that the accounts and audit report in respect of seven separate companies mentioned in the complaint had not been prepared in compliance with the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 440/2017), which was disposed of by the Division Bench of this Court by an order dated 24th August, 2017. The Division Bench issued directions to the Director (Discipline), to complete the process of examining the material placed before it and to communicate his prima facie opinion to the concerned authorities within a period of eight weeks. The concerned authorities (Disciplinary Committee or Board of Discipline, as the case may be) were directed to consider the said report and proceed in accordance with the relevant rules within a period of six weeks, thereafter. 6. Thereafter, on 23rd April, 2018, JMG submitted his response to the complaint. He refuted all the allegations and reiterated that the accounts for all years had been prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said case, as he had already retired from the firm of auditors ‒ M/s N.M. Raiji & Company. He also noted that several complaints had been filed by warring partners of M/s N.M. Raiji & Company and the same had been dealt with by the Disciplinary Directorate. In view of the aforesaid, the Director (Discipline) formed a prima facie opinion that JMG was not guilty of professional misconduct as alleged and forwarded the opinion to the Board of Discipline. As noted above, the Board of Discipline accepted the same and concurred with the said opinion. Reasons and Conclusion 9. It is relevant to note at the outset that the petitioner has no relation whatsoever with JMG or any of the seven companies in respect of which the complaint was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the petitioner company is permitted to carry on the activity of filing complaints against various Chartered Accountants was considered by this Court in the decision rendered today in W.P. (C) 8071/2019. This Court rejected the contention that the activity of the petitioner in pursuing complaints against various Chartered Accountants was otherwise permitted under its Memorandum of Association. This Court also observed that the use of a corporate façade of the petitioner by its directors/promoters for pursuing complaints against various Chartered Accountants, unconnected with its business, cannot be countenanced. 13. Insofar as the impugned order is concerned, the learned counsel appearing for the petitioner contended that Rule 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficult for securing proper evidence of the alleged misconduct. The second ground for doing so is if the member, against whom such allegation is made, would find it difficult to lead evidence to defend himself. And, the third is on account of changes, rendering the inquiry to be procedurally inconvenient or difficult. 16. In the present case, JMG had clearly stated in his response that he had retired from the firm of Chartered Accountants that was appointed to conduct the audit in view of disputes inter se the partners of the firm. He had also pointed out that the complaint had been made beyond the period of seven years and the Chartered Accountants were not required to maintain audit records for more than seven years. JMG also pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports were signed in June, 2009 and the complaint was dated 26th June, 2016, although it was filed subsequently. In addition to submitting a response, JMG would also be required to lead evidence to defend himself if the complaint had been escalated further. He had already expressed, in unequivocal terms, the constraints that he would suffer in defending himself. 19. The decision of the Director Discipline to not to entertain the complaint and the decision of the Board of Discipline to concur with the aforementioned opinion cannot be faulted. 20. Before concluding, it is also relevant to note that the petitioner has been filing various petitions before this Court in respect of complaints made before ICAI, despite having no particular inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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