MOHAMED ANWAR, J. ( 1 ) HEARD both sides. ( 2 ) PETITIONERS 2 to 4 are the Directors of petitioner 1-Company, which was registered with the Registrar of Companies and was incorporated on 17-8-1992. ( 3 ) A complaint against petitioners dated 20-9-2000 under Section 383-A (l-A) of the Companies Act, 1956 ('the Act' for short) was presented before the learned Trial Magistrate by the respondent complainant-Registrar of Companies, Karnataka, in C. C. No. 8 of 2000 pending on the file of the Court below. It is averred in the complaint that petitioners 2 to 4, who are accused 2 to 4 before the learned Magistrate, being the Directors of the company, are the officers in default within the meaning of Section 5 of the Act since no Managing Director or whole-time managing Director or Manager as such of the company was appointed by them. Its authorised capital is Rs. 5 crore of 50 lakh equity shares of Rs. 10/- each. Its paid-up capital is 3 crores 40 lakhs consisting of 34,00,000 equity shares of Rs. 10/- each as per the Annual Return of the company made upto 29-9-1998. The paid capital of the company exceeded Rs. 50 lakhs during the year ended 31-3-1993. Therefore, its paid-up capital being more than Rs. 50,00,000/-, the accused company was legally bound to appoint a whole-time qualified Company Secretary in compliance with the imperatives of Section 383-A (l) of the Act read with Rule 2 of the Companies (Appointment and Qualifications of Secretary) rules, 1988. Yet, no whole-time Company Secretary was appointed by it in compliance with Section 383-A (1) which envisages the penal liability contemplated under sub-section (1-A) of Section 383-A (l) of the act which is punishable with fine which may extend to Rs. 500/- for every day during which the default continues. ( 4 ) ON the basis of the aforestated complaint allegations, cognizance of the said offence viz. , under Section 383-A (l-A) of the Act was taken by the learned Magistrate against all the petitioners-accused on 3-1-2001 and process was ordered to be issued against them. The petition herein under Section 482 of the Cr. ( 4 ) ON the basis of the aforestated complaint allegations, cognizance of the said offence viz. , under Section 383-A (l-A) of the Act was taken by the learned Magistrate against all the petitioners-accused on 3-1-2001 and process was ordered to be issued against them. The petition herein under Section 482 of the Cr. P. C. is filed by the petitioners praying to quash the said criminal proceedings against them in C. C. No. 8 of 2001 pending on the file of the Court below on the ground that their case is covered by the proviso to sub-section (1-A) of Section 383-A which envisages that in any criminal proceeding initiated against the Company directors on the allegation of the breach of sub-section (1) of Section 383-A, it could be a good defence for the accused to prove that all reasonable efforts to comply with the provisions of sub-section (1) were taken or that the financial position of the company was such that it was beyond its capacity to engage a whole-time Secretary. ( 5 ) LEARNED Counsel for petitioners, Mr. Vivek Chandy, assailing the legality and propriety of the criminal action initiated by the respondent against petitioners, submitted that the accused company having suffered set-backs and reverses in its business is being proceeded against for winding up proceeding in Company Petition Nos. 169 and 170 of 1999 and that its holding company under the name and style of "sandur manganese and Iron Ores Limited" has approached the "board for Industrial and Financial Reconstruction" (BIFR) to get it declared as a sick company. ( 6 ) PER contra, the learned Counsel for respondent-complainant argued in support of the validity of the criminal action initiated against petitioners in the said C. C. No. 8 of 2001 before the learned Magistrate. Repelling the contentions of Mr. Vivek Chandy, he maintained that the criminal proceeding instituted against petitioners cannot be challenged by them seeking its quashment invoking the aid of Section 482 of the Cr. P. C. on the ground of availability of the defence provided by the proviso to sub-section (1-A) of Section 383-A, at the present stage of the proceeding; and that the same could be pressed into service by the accused at appropriate stage of the trial in the Court below. P. C. on the ground of availability of the defence provided by the proviso to sub-section (1-A) of Section 383-A, at the present stage of the proceeding; and that the same could be pressed into service by the accused at appropriate stage of the trial in the Court below. ( 7 ) FOR proper appreciation of the rival contentions put forward by both sides, it is necessary to advert to the relevant provisions of Section 383-A of the Act. They are excerpted below:"383-A. Certain companies to have Secretaries. (1) Every company having such paid-up share capital as may be prescribed shall have a whole-time Secretary, and where the Board of Directors of any such company comprises only two Directors, neither of them shall be the Secretary of the company". ( 8 ) THE material facts alleged in the complaint are not in dispute. They are that the company was incorporated on 17-8-1992 under the act; and that its paid capital exceeded Rs. 50,00,000/- during the year ended 31-3-1993. These facts prima facie attract applicability of sub- section (1) of Section 383-A and Rule 2 of the Companies (Appointment and qualifications of Secretary) Rules, 1988 that make it obligatory on the part of the company having its paid-up capital exceeding Rs. 50,00,000/- to have a whole-time Secretary appointed. It is also not in serious dispute at this stage of the proceeding that for the relevant period, the whole-time Secretary was not appointed by the accused company. These material allegations prima facie make out the offence punishable under sub-section (1-A) of Section 383-A of the Act, justifying taking of cognizance by the learned Magistrate and in his proceeding in taking further steps towards trial of the accused. A plain reading of the proviso to sub-section (1-A) of Section 383-A makes it crystal-clear that the accused could raise the defence stipulated therein in course of his/their trial by the learned Magistrate. At this stage of the proceeding, they are precluded from setting up the material constituting their defence stipulated in the said proviso as a weapon to nullify the legal action initiated against them by the respondent- complainant. ( 9 ) IN Mis, Pepsi Foods Limited v Special Judicial Magistrate, on which reliance was placed by Mr. Vivek Chandy, the Supreme Court has made the following pertinent observations at paragraph 28 of its judgment:"28. ( 9 ) IN Mis, Pepsi Foods Limited v Special Judicial Magistrate, on which reliance was placed by Mr. Vivek Chandy, the Supreme Court has made the following pertinent observations at paragraph 28 of its judgment:"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. . . . The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. . . . . . . ". Again at paragraph 29, the Supreme Court proceeds to hold:"29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. . . . . ". The aforestated propositions enunciated by the Supreme Court, evidently, do not help the petitioners' case in the light of the complaint allegations adverted to above. On the other hand, they fully support the impugned criminal proceeding initiated against them by the respondent. 10. . . . . ". The aforestated propositions enunciated by the Supreme Court, evidently, do not help the petitioners' case in the light of the complaint allegations adverted to above. On the other hand, they fully support the impugned criminal proceeding initiated against them by the respondent. 10. Furthermore, while considering the validity or otherwise of the criminal proceeding launched against any person, the Court exercising its revisional jurisdiction will have to bear in view the pronouncement of the Supreme Court in Hareram Satpathy v Tikaram Agarwala and Others, where it has laid down: ( 10 ) NOW as the Magistrate was restricted to finding out whether there was a prima facie case or not for proceeding against the accused and could not enter into detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction was very limited, the High Court could not in our opinion launch on a detailed and meticulous examination of the case on merits. ( 11 ) THEREFORE, for the reasons stated above, I find no merit in the petition. The petition is bound to fail and it fails. At this stage, it was submitted by the learned Counsel for petitioners that an order may be passed dispensing with the attendance of the accused Directors before the learned Magistrate in course of their trial. Such an order cannot be passed by this Court at the present stage of the proceeding and more so, it is upto the petitioners-accused to move the learned Trial Magistrate himself for their dispensation in appearance at appropriate stage of the proceeding invoking the enabling provision in cr. P. C. --- *** --- .