2002 (7) TMI 564 - HC - Companies Law

Summary

Issues:
1. Interpretation of sub-sections (5) and (5A) of section 454 of the Companies Act, 1956.
2. Determination of reasonable excuse for non-compliance with section 454 requirements.
3. Burden of proof on prosecution in cases of non-compliance.

Analysis:
The High Court of Andhra Pradesh considered two appeals together where the learned Company Judge had convicted the appellant in both cases under sub-section (5A) of section 454 of the Companies Act, 1956, for non-compliance with the requirements of section 454. Sub-sections (5) and (5A) of section 454 were crucial for the decision. Sub-section (5) outlined the penalties for default, including imprisonment or fines, while sub-section (5A) empowered the Court to take cognizance of an offense upon receiving a complaint and trying the offense as per the Criminal Procedure Code. The Court emphasized that the prosecution must prove beyond doubt that the accused had no reasonable excuse for the default to exercise power under sub-section (5A). The burden of proof regarding the absence of a reasonable excuse lies on the prosecution, in this case, the Official Liquidator. In the absence of evidence proving the lack of reasonable excuse for non-compliance, the Court ruled in favor of the appellants. The Court highlighted that mere default in compliance is not sufficient for prosecution under sub-section (5A); the prosecution must establish the absence of a reasonable excuse for the default, which was not done in this case. Therefore, the appeals were allowed, and the impugned orders were set aside, with the directive for the Company Judge to take further steps in accordance with the law and the provisions of section 454.

In conclusion, the judgment clarified the importance of proving the lack of reasonable excuse for non-compliance with section 454 requirements before prosecuting under sub-section (5A) of the Companies Act, 1956. The burden of proof rests on the prosecution to establish this fact, and without such evidence, convictions cannot be sustained. The decision emphasized the necessity of meeting the jurisdictional fact of the absence of a reasonable excuse to exercise power under sub-section (5A), ensuring fair and just legal proceedings in cases of non-compliance with company law regulations.