TMI Blog2021 (9) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... any person connected thereto. In the case in hand, the complaint lodged by the opposite party does not prima facie reflect such intent on the part of the petitioners. Per contra, though the opposite party has referred to the notice of show cause in the complaint, the reply to the said notice given by the petitioners is conspicuously absent therein. It is also inconceivable that the inspection was held sometime in 2018 and the notice to show cause signed on 24th August, 2018 whereas the instruction of the Ministry to launch prosecution for such violation was issued on 7th December, 2017, i.e., preceding the inspection. The complaint does not prima facie make out an offence under sections 118(2) and (7) read with sections 447/448 Act of 2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f proceedings of complaint case no. 15 of 2018 filed by the opposite party before the Learned 2nd Special Court, Calcutta for offence punishable under sections 118(2) and (7) read with sections 447/448 of the Companies Act, 2013. 2. The contention of the petitioners, in a nutshell, is that petitioner no. 1 is a company registered under the provisions of the Companies Act, 2013 and petitioner no. 2 is the erstwhile manager of the company. Petitioner no. 1 applied to the Reserve Bank of India vide application dated 28th March, 2014 for being registered as Core Investment Company (CIC) pursuant to the Core Investment Companies (Reserve Bank) Directions, 2011 following which the Reserve Bank of India vide letter dated 6th May, 2014 sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20th September, 2018. The said explanation was not found to be satisfactory by the opposite party who lodged the complaint against the petitioners. 4. It is submitted on behalf of the petitioners that the error detected in item no. 12 of the minutes was a typographical mistake which was subsequently rectified by the company suo motu. Such rectification was carried out on 9th September, 2015 and the show cause notice was issued by the opposite party only on 24th August, 2018. Though the company sufficiently and adequately explained the said error and its rectification to the opposite party, the opposite party lodged the complaint for no good reason. The petitioners have prayed for quashing the entire proceedings pending before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item no. 12 of the minutes recorded with regard to meeting of the Board of Directors of the company held on 11th June, 2014, it is stated that the Chairman informed that the Company had submitted application with Reserve Bank of India (RBI) for its de-registration as NBFC and registration as a CIC pursuant to the Core Investment Companies (Reserve Bank) Directions, 2011...... The application for registration as CIC-ND-SI before the RBI dated 28th March, 2014 speaks of a request for registration of the company as CIC-ND-SI and is bereft of any request for de-registration as NBFC. This indicates that the words for its de-registration as NBFC was erroneously recorded in the minutes and no such request was made before the RBI, moreso, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be an instrument to axe down or stifle a legitimate prosecution. The test is whether the uncontroverted allegations made in the complaint make out a prima facie case and whether allowing the proceedings to continue would amount to abuse of the process of the court. 12. It is crystal clear from the minutes dated 11th June, 2014 and 9th September, 2015 that the words for its de-registration as NBFC was inadvertently recorded and was rectified upon detection. The application for registration dated 28th March, 2014 supports the contention of the petitioners that no such request for de-registration was made in the said application. The company not being registered as NBFC at the relevant time, the question of de-registration did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsent therein. It is also inconceivable that the inspection was held sometime in 2018 and the notice to show cause signed on 24th August, 2018 whereas the instruction of the Ministry to launch prosecution for such violation was issued on 7th December, 2017, i.e., preceding the inspection. The complaint does not prima facie make out an offence under sections 118(2) and (7) read with sections 447/448 Act of 2013. Typographical/inadvertent error in recording of minutes rectified subsequently can under no stretch of imagination be termed as an offence, far less an offence under the provisions of the Act of 2013 as alleged. That the petitioners acted with a malafide intention to deceive, gain undue advantage or injure the interest of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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