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TMI Blog2023 (4) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018; that the petitioners had not filed the annual return and balance sheet till date and; that the offence under Sections 92(5) and 137(3) of the Act are continuing offences. Hence, the complaint. 3. The learned counsel for the petitioners submitted that the impugned complaint is liable to be quashed since subsequently, the petitioners have filed the annual return and the balance sheets; that the respondent had sent a letter on 30.09.2019 stating that the offences under Sections 92(5) and 137(3) of the Act can be compounded on payment of a compounding fee; that they demanded compounding fee of Rs. 6,72,000/- for the offence under Section 92(5) of the Act and Rs. 15,03,000/- for the offence under Section 137(3) of the Act. The learned counsel further would submit that while filing their balance sheet and annual return, the complainant demanded a penalty and they had also paid a penalty of Rs. 29,600/-. The learned counsel therefore submitted that the impugned prosecution would amount to double jeopardy. Alternatively, the learned counsel submitted that the offences under Section 92(5) and 137(3) of the Act along with other offences were decriminalised by the amendments to the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of objects and reasons made it clear that the Act was introduced to reduce the rigour of punishments for certain lapses which are technical and procedural nature for the purpose of promoting the ease of doing business and for better corporate compliance. 7. This Court had occasion to consider a similar provision under Section 167(5) of the Act, where also by virtue of the amendment, the punishment prescribed was changed from fine to penalty, thereby decriminalising the said violation. This court had considered the statements of objects and reasons of the Amending Act and the Judgment of the Hon'ble Supreme Court in T. Barai Vs Henry Ah Hoe and Another reported in (1983) 1 Supreme Court Cases 177 in B. Kannan Vs. The Deputy Registrar of Companies in W.P.No.2735 of 2017 dated 12.12.2022 and held as follows; "6. We have heard the learned counsel appearing on either side. Though the learned counsel strenuously made various submissions, he would ultimately submit that it would suffice if this Court considers the effect of the Companies Amendment Act 2020 to the pending prosecution. The only question hence to be decided by this Court is whether the amendment that was brought into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed was only 3 years, whereas, in the West Bengal Act, the punishment prescribed was life imprisonment. Therefore, the earlier West Bengal Act provided a trial by the Court of Sessions and by virtue of the amendments, the trial was to take place before the Magistrate. The Hon'ble Court held in such circumstances, held as follows: "22. It is only retroactive criminal legislation that is prohibited under Art. 20(1). The prohibition contained in Art. 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under s. 16(1)(a) of the Act, there is no reason why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment for an offence, the accused shall have benefit of such reduced punishment notwithstanding the fact that he had committed the offence prior to the amendment. (d) In order to apply the third principle referred, the offence described under the old Act and the new Act must be one and the same. If the ingredients are different, then, the principle of awarding reduced punishment after the amendment, would not be applicable. 11. The Judgment in In re Athlumney vs. Exparte Wilson relied to the respondent reported in [1898]2 Q.B 547 does not deal with a case where the Amendment seeks to reduce the rigour of punishment. Hence, it is not applicable to the facts of the instant case. 12. Applying the above principles to the instant case on hand, we find that the Parliament had made amendments for the purpose of easing the doing of business and also for reduction of prosecution that are filed in the Special Court. The relevant portion of the Statement of Objects and Reasons for the amendments for the Amendment Bill 2018 which sought to make the amendment to Section 165(6) of the Companies Act as well, reads as follows: ".....The Committee recommended that the existing rigour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the Parliament is very clear and the since of the Amendment Act 2020 mollifies the rigour of punishment the beneficial construction has to be applied in favour of the accused in pending prosecutions and all the prosecution has to be withdrawn and transferred to the adjudicating authority appointed under Section 454 of the Companies Act for further proceedings in terms of the said provision." 8. The above observations are squarely applicable to the facts of the instant case. It is to be noted here that subsequent to modifying the sentence from fine to penalty in the year 2019, the Companies Amendment Act 2020 also brought about change in the quantum of penalty that can be levied. Therefore, the petitioners are entitled to the benefit of the Companies Amendment Act, 2019 and the Companies Amendment Act, 2020 which further changes or mollifies the rigour of punishment for the lapses. Since the petitioner's case is similar to the case that is extracted above, the prosecution against the petitioners is transferred to the adjudicating authority appointed under the Act to adjudicate the contravention committed by the petitioners in terms of Section 454 read with 92(5) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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