B. SUDERSHAN REDDY, J. ( 1 ) THIS is an application filed by the petitioners under Section 482 of the Code of criminal Procedure to quash the proceedings in C. C. No. 29 of 1998 on the file of the learned Special Judge for Economic offences, Hyderabad, in which the petitioners herein are arrayed as A-1 and A-2 respectively. ( 2 ) THE first respondent-Registrar of companies filed a complaint against the petitioners herein under Section 58-A (6) of the Companies Act, 1956 (for short the Act ) read with Rule 11 of the Companies (Acceptance of Deposits) Rules, 1975 (for short the Rules ). ( 3 ) PETITIONER No. 1 is the Managing director and petitioner No. 2 is the director of the company known as "m/s. Commercial Agro Products Private limited", which was incorporated on 21-7-1993. In the complaint filed by the first respondent, it is alleged that the respondent- complainant observed from the balance sheet as at 31st March, 1995 and 31st March, 1996 the company has under the guise of sheep units and through other schemes invited and accepted deposits from the public and the amounts outstanding under the above heads in the balance sheet as at 31-3-1995 and 31-3-1996 are Rs. 10. 51 crores and Rs. 10. 44 crores respectively. It is the case of the respondent-complainant that the aforesaid amounts were accepted by the said company without complying the requirements of advertisement limits as stipulated under Section 58-A (1) and (2) of the Act. The Company did not comply with the Rules of the Companies (Acceptance of Deposits) Rules, 1975 which stipulate the requirements of maintenance of liquid assets, the limits up to which the deposits can be invited and accepted, filing of text of advertisement/statement in lieu of advertisement, maintenance of deposits and filing of return of deposits, etc. ( 4 ) THE first respondent-Registrar of the companies issued a show-cause notice to the petitioners on 17-11-1997 as to why legal action should not be initiated for the said contravention. The first petitioner herein sent a reply stating that the proceedings under the Act have to come to an end consequent upon the orders of the High court in C. A. No. 420 of 1997, dated 24-7-1997 resulting in the appointment of the Official Liquidator as provisional liquidator. The first petitioner herein sent a reply stating that the proceedings under the Act have to come to an end consequent upon the orders of the High court in C. A. No. 420 of 1997, dated 24-7-1997 resulting in the appointment of the Official Liquidator as provisional liquidator. ( 5 ) IT is the case of the first respondent-complainant that the default pertains to prior to liquidation proceedings and, therefore, the plea taken by the first petitioner is not tenable in law. In the circumstances, the first respondent-complainant filed a complaint under section 58-A (6) of the Act read with Rule 11 of the Rules against the petitioners for contravention of the provisions of section 58-A (1) and (2) of the Act and rule 3, 3-A, 3 (2) (i), 3 (2) (ii), 4/4a, 7, 8 and 10 of the Rules. This in precise is the case of the respondent-complainant. ( 6 ) IN this petition, the learned Senior counsel, Sri C. Padmanabha Reddy, submits that the complaint filed by the respondent- complainant suffers from incurable legal infirmities and, therefore, the same is liable to be quashed. It is contended that the company received amounts from unit holders by way of advances to render service to the units held by the unit holders for an agreed service charges in the course of the business of the company and such amounts cannot be characterised as deposits. The company did not accept any deposits and it received only advances which will fall under exemption of Rule 2 (b) (vi) of the Rules. It is submitted that section 58-A of the Act and the rules made thereunder do not apply to the facts on hand even if the allegations and accusations made in the complaint are taken on their face value as true. ( 7 ) THE question as to whether the company received the amounts from the unit holders by way of advances to render the services or the company through various schemes invited and accepted deposits from the public to a tune of Rs. 10. 51 crores and rs. 10. 44 crores as on 31-3-1995 and 31-3-1996 respectively cannot be gone into by this court in this summary proceeding. It is for the prosecution to establish the case against the petitioners. 10. 51 crores and rs. 10. 44 crores as on 31-3-1995 and 31-3-1996 respectively cannot be gone into by this court in this summary proceeding. It is for the prosecution to establish the case against the petitioners. The plea of the petitioners herein that what they have accepted is not the deposit but only towards the advance which falls under exemption of Rule 2 (b) (vi) of the Rules may be their defence. The question as to whether the company received the amounts as advances from the unit holders for the rearing of sheep for the purpose of the business of the company for rendering services is a question of fact. It can only be decided after the parties let in their evidence. In the circumstances, this court at this stage does not propose to express any opinion whatsoever. No relief could be granted to the petitioners on this count. The complaint itself cannot be quashed on that ground. The issue is left open. ( 8 ) SRI C. Padmanabha Reddy, learned senior Counsel, however, further contends that even if at all under Section 58-A (6) of the Act the company must be punished and then every officer of the company who is in default shall be liable to be punished, but in the present case the complainant has not made the company as an accused and in the absence of impleadment of the company as one of the accused, the officers alone are not liable for any punishment for the offence if any committed by the company by the respondent-complainant. ( 9 ) IN order to appreciate the said contention, it is required to notice the averment made in the complaint, which is to the following effect:"that the complainant herein respectfully submits that by an order dt. 24-7-1997 made in C. P. No. 83 of 1993, the Hon ble High Court of A. P. , hyderabad was pleased to appoint the official Liquidator attached to the high Court of A. P. , Hyderabad as a provisional Liquidator of the abovenamed company. In view of that, the aforesaid company was not impleaded as party/accused in the present case. 24-7-1997 made in C. P. No. 83 of 1993, the Hon ble High Court of A. P. , hyderabad was pleased to appoint the official Liquidator attached to the high Court of A. P. , Hyderabad as a provisional Liquidator of the abovenamed company. In view of that, the aforesaid company was not impleaded as party/accused in the present case. " ( 10 ) HOWEVER, in the relief portion, the complainant prayed the court to take the case on file for the said default and punish the Company according to law; and to pass such order/orders under Section 626 of the act as to costs of these proceedings as might appear just and proper to the Court. ( 11 ) IT is difficult to discern as to why the respondent-complainant failed to implead the company also as one of the accused. It is not as if the company was wound-up as on the date of filing of the complaint and not in existence for whatever purposes. But the question that falls for consideration is as to whether the complaint itself is liable to be quashed for the reason of non-impleadment of the company in the array of parties as an accused. However, the learned Senior counsel contends that it is the company which is liable to be punished where such a company accepts or invites, or allows or causes any other person to accept or invite on its behalf, any deposit in excess of the limits prescribed under sub-section (1) or in contravention of the manner or condition prescribed under that sub-section or in contravention of the provisions of the sub-section (2 ). In the absence of the company as an accused, which is in default, the officers of the company cannot be punished. ( 12 ) SECTION 58-A of the Act mandates that no company shall invite, or allow any other person to invite or cause to be invited on its behalf, any deposit unless such deposit is invited or cause to be invited in accordance with the rules. ( 12 ) SECTION 58-A of the Act mandates that no company shall invite, or allow any other person to invite or cause to be invited on its behalf, any deposit unless such deposit is invited or cause to be invited in accordance with the rules. Sub-section (6) of Sec. 58-A of the Act is relevant for our present purpose, which reads: (6) Where a company accepts or invites, or allows or causes any other person to accept or invite on its behalf, any deposit in excess of the limits prescribed under sub-section (1) or in contravention of the manner or condition prescribed under that sub-section or in contravention of the provisions of sub-section (2), as the case may be,- (a) the company shall be punishable,- (i) where such contravention relates to the acceptance of any deposit, with fine which shall not be less than an amount equal to the amount of the deposit so accepted; (ii) where such contravention relates to the invitation of any deposit, with fine which may extend to ten lakh rupees but shall not be less than fifty thousand rupees; (b) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to five years and shall also be liable to fine. ( 13 ) ON a true and fair construction of sub-section (6) of Section 58-A of the Act would make it clear that the company and every officer of the company shall be punishable where a company accepts or invites, or allows or causes any other person to accept or invite on its behalf, any deposit in excess of the limits prescribed under sub-section (1) of Section 58-A or in contravention of the manner or condition prescribed under that sub-section or in contravention of the provisions of sub-section (2), as the case may be. Sub-section (6) (a) declares that the company shall be punishable, whereas sub-section (6) (b) declares that every officer of the company who is in default shall be punishable. We are not concerned with the details of the punishment to be imposed upon the company and every officer of the company who is in default. Both the company and every officer of the company are liable to be punished. We are not concerned with the details of the punishment to be imposed upon the company and every officer of the company who is in default. Both the company and every officer of the company are liable to be punished. It is not as if the company alone is liable to be punished The language of Section 58-A (6) (a) and (b) of the Act does not justify the submission made by the learned Senior Counsel. ( 14 ) THE Supreme Court in Sheoratan agarwal v. State of U. P. while interpreting section 10 of the Essential Commodities Act, 1955 dealt with more or less similar contentions and declared the law i the following terms:"the section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in-charge of, and was responsible to, the Company for the conduct of the business of the company whom for short we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the Company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The Company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the personss who may be prosecuted where the contravention is made by the Company. It does not lay down any condition that the person-in-charge or an officer of the Company may not be separately prosecuted if the Company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the Company. Section 10 lists the persons who may be held, guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential commodities Act. Each or any of them may be separately prosecuted or along with the Company. Section 10 lists the persons who may be held, guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential commodities Act. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the Order by the Company. That should be axiomatic and that is all that the court laid down in State of Madras v. C. V. Parekh ( AIR 1971 SC 447 ) as a careful reading of that case will show and not that the person-in-charge or an officer of the Company must be arraigned simultaneously along with the Company if he is to be found guilty and punished. The following observations made by the Court clearly bring out the view of the Court (Para 3) : "it was urged that the two respondents were in charge of, and were responsible to, the company for the conduct of the business of the company and, consequently they must be held responsible for the sale and for thus contravening the provisions of clause 5 of the Iron and Steel (Control) Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the magistrate or by the High Court that the sale in contravention of clause 5 of the Iron and Steel (Control) Order was made by the company. In fact, the Company was not charged with the offence at all. The liability of the persons-in-charge of the Company only arises when the contravention is by the company itself. Since, in this case, there is no evidence and no finding that the Company contravened C. I. 5 of the Iron and Steel (Control) Order the two respondents could not be held responsible. The actual contravention was by Kamdar and villabhadas Thacker and any contravention by them would not fasten responsibility on the respondents. Since, in this case, there is no evidence and no finding that the Company contravened C. I. 5 of the Iron and Steel (Control) Order the two respondents could not be held responsible. The actual contravention was by Kamdar and villabhadas Thacker and any contravention by them would not fasten responsibility on the respondents. " the sentences underscored by us clearly show that what was sought to be emphasised was that there should be a finding that the contravention was by the Company before the accused could be convicted and not that the company itself should have been prosecuted along with the accused. We are therefore clearly of the view that the prosecutions are maintainable and that there is nothing in Section 10 of the essential Commodities Act which bars such prosecutions. " ( 15 ) THE same principle would apply for interpretation of Section 58-A (6) (b) of the act. For the contraventions prescribed under sub-section (1) of Section 58-A of the act or for contravention of the provisions of sub-section (2) of Section 58-A of the Act, as the case may be, not only the Company, but also every officer of the company who is in default shall be punished. Therefore, the prosecution launched against the petitioner herein, in my considered opinion, does not suffer from any incurable legal infirmity. As held by the Supreme Court in Sheoratan agarwal (supra) what is required is that there should be a finding that the contravention was by the Company before the petitioners could be convicted and it is not necessary that the Co. mpany itself should be prosecuted along with the petitioners. It would have been perfectly open to the respondent-complainant to prosecute the company along with the petitioners herein. But, for whatever reason, the respondent-complainant had chosen not to prosecute the company and some reasons are stated in the complaint itself, about which, it is not necessary to express any opinion at this stage. But the prosecution launched against the petitioners herein is not vitiated on the ground that the complainant failed to prosecute the company along with the petitioners. But the prosecution launched against the petitioners herein is not vitiated on the ground that the complainant failed to prosecute the company along with the petitioners. ( 16 ) IN Anil Hada v. Indian Acrylic Limited, the Supreme Court while interpreting sections 138 and 141 of the Negotiable instruments Act, 1881 held:"thus when the drawer of the cheque who falls within the ambit of Sec. 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase "as well as" used in sub-section (1) of section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par withthe offending company. Similarly the words "shall also" in sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the Legislature as per the section. Hence the actual Offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence. If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed that offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act. " ( 17 ) THE learned Senior Counsel, sri C. Padmanabha Reddy, however, made an attempt to distinguish the judgment by referring to the phrase "as well as" used in sub-section (1) of Section 141 of the negotiable Instruments Act which is not present in Section 58-A (6) (b) of the companies Act, 1956. But, nonetheless the ratio of the judgment that "the provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned under Section 141 of the Negotiable instruments Act" would equally be applicable to the case on hand. ( 18 ) HERE also a plain reading of section 58-A (6) (b) of the Act would make it clear that it does not contain a condition that the prosecution of the company is sine qua non for prosecution of every officer of the company who is in default. No doubt, a finding that the offence was committed by the Company is sine qua non for convicting every officer of the company who is in default. In the absence of a finding that the offence was committed by the company, the officers of the company alone cannot be convicted. Such findings can be recorded even in the absence of the Company being arrayed as an accused in the complaint. It shall always be open to the officers of the company to plead and take defence and contend that the company itself has not committed the alleged offence even in the absence of the company being impleaded as one of the accused. ( 19 ) IT may have to be borne in mind that the company is a juristic person. It is always represented by its chosen representative. ( 19 ) IT may have to be borne in mind that the company is a juristic person. It is always represented by its chosen representative. In the present case, petitioner No. 1 is the managing Director. Petitioner No. 2 is the director of the Company and is in charge of the day-to-day affairs of the Company along with the first petitioner. In the circumstances, it would not be difficult for them to plead and show that the Company itself has not committed any offence. The situation would have been the same even if the Company has been arrayed as one of the accused. ( 20 ) BUT, if the company is not prosecuted due to any legal impediments, the officers of the company cannot on that score alone escape from the penal liability as envisaged under Section 58-A (6) (b) of the Act. ( 21 ) THE question as to whether the company has committed any offence punishable for the contravention of section 58-A of the Act, is to be gone into by the trial Court. ( 22 ) THE observations, if any, made in this order are confined only for the purpose of disposal of this application. The learned special Judge shall proceed with the enquiry and trial in accordance With law uninfluenced by the observations, if any, made in this order except with regard to the declaration of law. ( 23 ) THE Criminal Petition shall accordingly stand dismissed. Consequently, the interim stay earlier granted by this Court shall stand vacated.