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2010 DIGILAW 570 (RAJ)

Official Liquidator v. Ravindra Kumar Saxena

2010-03-11

AJAY RASTOGI

body2010
JUDGMENT : Hon’ble RASTOGI, J.-M/s Rajasthan Jeevan Nidhi Sanchaya Aarthik Prabandh Ltd., ("Company") was ordered to be wound up vide order dt.08/07/1994 in Company Petition No.l/1994; and Official Liquidator attached to the Court was appointed as its provisional liquidator from the date of winding up order - by virtue whereof, statement of affairs was to be filed by Directors of the Company as named in para - 2 of instant application, as required u/s. 454 of Indian Companies Act, 1956 ("Co. Act") ; but it was not done in the prescribed time; as such Official liquidator (applicant) as a complaint has filed instant application 454 of the Co. Act read with R.9 of Companies (Court) Rules, 1959. This Court vide order dt.17/09/2004 while admitting the complaint, issued notice to the respondents. 2. However, reply to the complaint (instant application) has been filed which has certainly to be examined in accordance with procedure provided for the trial of summons cases under Cr.P.C. But in the reply, preliminary objection has been raised by respondents that complaint has been filed after a expiry of period of limitation as provided u/s.468, Cr.P.C.; as such is not maintainable. Counsel for respondents placed reliance upon decision in Commm. of Wealth Tax Amritsar vs. Suresh Seth ( 1981(2) SCC 790 = 1981 (129) ITR 328)) and submits that the offence alleged in the complaint is complete and provisions of S.468,Cr.P.C. would bar filing of such complaint. 3. Per contra, Counsel for applicant (O.L.) submits that the act of default alleged in the complaint being continuing offence, S.472, Cr.P.C. will apply to the applicant (complainant) and therefore criminal complaint can be examined and tried by the Court in terms of procedure as provided under CRPC for trial of summons cases (Chapter XX, Cr.P.C.). In support, Counsel placed reliance upon decision of Delhi High Court in Globe Associates (P) Ltd (In liquidation) vs. FC Mehra & Others (1987 (Vo1.61) Co. Cases p. 814). 4. This Court has considered rival contentions of the parties and with their assistance examined material on record. Respondents being Ex-Directors of the Company are required to file u/Sec. 454(1) & (2) of Co. Cases p. 814). 4. This Court has considered rival contentions of the parties and with their assistance examined material on record. Respondents being Ex-Directors of the Company are required to file u/Sec. 454(1) & (2) of Co. Act their statement of affairs of the Company, within 21 days of the winding up order or within such extended time not exceeding three months from the date as the Official Liquidator or the Court for special reasons may appoint as provided u/Sec.454(3). 5. Section 454(5) & (5A) of Co. Act being relevant are quoted ad infra: "454. Statement of affairs to be made to Official Liquidator.- (5) If any person, without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees for every day during which the default continues, or with both. (5A) The Tribunal by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898) for the trial of summons cases by magistrates." However, provisions (supra) clearly envisage that in case a person without reasonable excuse commits default in making compliance of any of requirements of S.454, his act of default is punishable with imprisonment for a term which may extend to two years, or with fine for every day during which the default continues, or with both; for which the Court may take cognizance upon receiving a complaint of facts constituting such an offence under subsection (5) of S.454 may try the alleged offence in accordance with subsection 5A of S.454 of the Co. Act as per the procedure as laid down in Code of Criminal Procedure for the trial of summons cases. 6. Provisions contained in S.454(5) & (5A) of Co. Act as per the procedure as laid down in Code of Criminal Procedure for the trial of summons cases. 6. Provisions contained in S.454(5) & (5A) of Co. Act have been considered by Delhi High Court in Globe Associates (P) Ltd (In liquidation) vs. FC Mehra (supra) ad infra: "The question that arises is if the offence is complete on the 21st day of the winding up order in case there is default in filing the statement of affairs, or, for that mater, if the offence is complete after 3 months if time is extended. Mr. Bawa's contention is that the offence is complete and the provisions of Section 468 of the Code would bar filing of the complaint. I am unable to agree with his submission. A reading of the provisions of Section 454 of the Act would make it abundantly clear that non-filing of the statement of affairs in time is a continuing offence and it terminates only on the filing of the statement of affairs. That is why under sub-section (5) of Section 454, the punishment of fine could extend to one hundred rupees of every day during which the default continued. Mr. Malhotra is right when he says that in the present case, section 472 of the Code would be applicable." Thus viewed, offence of non-filing of statement of affairs as required u/Sec. 454(1) & (2) as per time stipulated u/Sec. 454(3) is a continuing offence u/Sec. 454(5) and it terminates only on filing of statement of affairs; that being so, under sub-section (5) of Section 454, punishable with imprisonment or fine for every day during which the default continues - as a result whereof, Section 472 Cr.P.C. would be attracted in the facts of instant case. 7. Judgment relied by Counsel for respondents in Commnr. of Wealth Tax vs. Suresh Seth (supra), is of no assistance to the respondents, apart from it being over-ruled by Apex Court in Maya Rani Punj vs. Commnr. of Income Tax (1986(157) ITR 330) and in view of judgment of Apex Court (supra), it cannot be disputed that the offence u/Sec. 454(5) of the Co. Act is a continuing one. 8. Consequently, preliminary objection raised by Counsel for respondents in regard to maintainability of the complaint is over-ruled and stands rejected. Respondents are directed to appear in person before this Court on 08.04.2010.