TMI Blog2022 (9) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... ging two other complaints of similar nature, rightly relied upon the judgment of the Hon'ble Apex Court in Madhumilan Syntex Ltd., [ 2007 (3) TMI 670 - SUPREME COURT] and dismissed those petitions. The present petitions are also liable to be treated in the same manner and this Court does not find any ground to interfere with the proceedings of the Court below. The presence of the second petitioner is dispensed with and she shall be represented through her counsel. The second petitioner shall be present before the Court at the time of questioning u/s 313 Cr.P.C. and at the time of passing judgment in the complaint. The learned counsel appearing on behalf of the second petitioner shall cross-examine the witnesses on the same day or on the next hearing date, the witnesses who are examined in chief. It goes without saying that it will be left open to the second petitioner to raise all the grounds before the Court below and the Court below shall consider the same on its own merits and in accordance with law, without being influenced by any of the observations made in this order. In the result, all the criminal original petitions stand dismissed and there shall be a direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OTHERS-Vs-UNION OF INDIA AND 3 OTHERS , reported in 2014 SCC OnLine Guj 10066 , which was relied upon by this Court in Crl.O.P(MD)Nos.16082 etc., of 2018, order dated 25.10.2019 and submitted that this Court had already quashed the proceedings as against the nominee non-executive directors and the order passed by this Court will equally apply to the case of the second petitioner also in these three petitions. Accordingly, the learned counsel sought for quashing of proceedings insofar as the second petitioner is concerned. 8.Per contra, the learned Standing Counsel appearing on behalf of the Department submitted that the order passed by this Court in Crl.O.P(MD)Nos.16082 etc., of 2018 will not apply to the facts of the present case, since this Court dealt with nominee directors and whereas in the present case, the second petitioner is claiming to be a nonexecutive director and both are two different classes of directors, who cannot be placed on a equal footing. The learned Standing Counsel brought to the notice of this Court the order passed in Crl.O.P(MD)No. 13196 etc., of 2016 and Crl.O.P(MD)No.16152 of 2017, pertaining to two other complaints, which were filed along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on hand, in the show cause notice dated March 11, 1991 issued under Section 276B read with Section 278B of the Act, it was expressly stated by the Income Tax Officer, TDS, Bhopal that the Directors were considered to be Principal Officers under Section 2(35) of the Act. In the complaint dated February 26, 1992 filed by respondent No. 2-Commissioner also, it was stated that appellants were considered as Principal Officers. In the above view of the matter, in our opinion, contention of the learned counsel for the appellants cannot be accepted that the complaint filed against the appellants, particularly against appellant Nos. 2-4 is ill-founded or not maintainable. 45.It was urged that a separate notice and/or communication ought to have been issued before issuance of show cause notice under Section 276 B read with Section 278B of the Act that the Directors were to be treated as Principal Officers under the Act. In our opinion, however, no such independent and separate notice is necessary and when in the show cause notice it was stated that the Directors were to be considered as Principal Officers under the Act and a complaint was filed, such complaint is entertainable by a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second petitioner. 13.The next issue to be taken into consideration is with regard to the earlier order passed by this Court dismissing the quash petition. It is pertinent to note that those quash petitions were filed by the Company and also the petitioners in these petitions. While dealing with those quash petitions, this Court specifically placed reliance upon the judgment of the Hon'ble Apex Court in Madhumilan Syntex Ltd. , case and it was held as follows: 5.It is relevant at this juncture to refer the case of Madhumilan Syntex Ltd., and another Vs. Union of India and another reported in 2007 (11) SCC 297 , wherein the Directors of the Company approached the Court seeking quash of the criminal prosecution on the ground that the tax deducted at source was paid with interest and there was reasonable cause of the belated payment, the Honourable Supreme Court after extracting the relevant provisions of the Income Tax Act, has held as follows: ''47.The next contention that since TDS had already been deposited to the account of the Central Government, there was no default and no prosecution can be ordered cannot be accepted. Mr.Ranjit Kumar invited our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act comes up with a very specific provision under Section 2(35) of the Act, wherein notice can be issued to all the directors treating them as principal officers. The Hon'ble Apex Court in the above judgment has categorically held that once such notice is given and necessary averments are also made in the complaint, the fact as to whether the director is a principal officer or not can only be decided in trial. This ratio will squarely apply to the facts of the present case. That is the reason why, the learned Single Judge, while dismissing two other quash petitions filed by the petitioner challenging two other complaints of similar nature, rightly relied upon the judgment of the Hon'ble Apex Court in Madhumilan Syntex Ltd. , case and dismissed those petitions. The present petitions are also liable to be treated in the same manner and this Court does not find any ground to interfere with the proceedings of the Court below. 17.The learned counsel for the petitioner submitted that already proceedings have been initiated under IBC Code and Resolution Professional has been appointed to take care of the affairs of the company. The learned counsel further submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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