2009 (4) TMI 443 - HC - Companies Law

Non filing of Annual return - Penalty - petitioner being convicted and sentenced for commission of offences punishable under section 162 read with section 220(3) of the Companies Act - Held that - The petitioner in the instant case had tendered his resignation on 27-7-1971, i.e., 11 to 15 years prior to the alleged violations which pertained to the years 1982, 1983, 1984, 1985 and 1986. The receipt of the said resignation is specifically admitted by the respondent and no material has been placed on record by the respondent to show that the same was not accepted or was objected to either by the accused Company or by the Registrar of Companies. The complaints are dated 16-7-1993, which goes to show that the same were initiated more than 22 years after the Registrar of Companies had admittedly been communicated the letter of resignation of the petitioner and had accepted the same in terms of its own Circular. The petitions are allowed by setting aside the order of conviction and sentence dated 17-8-2002

Summary

Issues:
Quashing of judgment dated 17-8-2002 passed in Crl. A. Nos. 3 to 12/2002 by the Additional Sessions Judge, Delhi.

Analysis:
1. The petitioner contended that he had resigned from the accused Company in 1971 and was not actively involved, being a public servant. He argued that the complaint was time-barred under section 468 of the Criminal Procedure Code and lacked sufficient grounds under section 203 of the Criminal Procedure Code.

2. The petitioner's counsel highlighted Circular No. 42(400)-CL-II-59, stating that sending a resignation letter to the Registrar of Companies was sufficient. The respondent's admission in a previous affidavit supported the petitioner's claim of resignation in 1971.

3. Reference was made to the Luk Auto Ancillary (India) Ltd. case where it was emphasized that the Registrar's acceptance of resignation without prosecution indicated acknowledgment. Additionally, the Saumil Dilip Mehta case clarified that a director can resign unilaterally without filing Form No. 32.

4. The petitioner's counsel argued that the violations occurred after the 1971 resignation, which was accepted without objection. The complaints filed in 1993 did not allege any default by the petitioner, further supporting his case.

5. In contrast, the respondent relied on Anita Chadha's case to argue that a retired director could still be considered an "officer in default." However, the court found this argument inapplicable as the resignation predated the alleged violations by over a decade, and there was no evidence of objection to the resignation.

6. Relying on precedent and the circumstances of the case, the court allowed the petitions, setting aside the conviction and sentence passed in Crl. A. Nos. 3/2002 to 12/2002. The judgment highlighted the acceptance of resignation by the Registrar and the lack of objections over the years, leading to the dismissal of the complaints initiated long after the resignation was communicated and accepted.