2009 (2) TMI 473 - HC - Companies Law

Non filing of statement of affairs - the official liquidator has filed a complaint against the respondents who were the ex-directors of the company under liquidation - Held that - The evidence shows that the official liquidator desires to prosecute the offenders with a fine of more than ₹ 2 lakhs since the offence of non-filing of the statement of affairs is a continuing offence. However, taking into consideration on the peculiar facts and circumstances of the case we order the fifth respondent to pay a fine of ₹ 25,000. The fine shall be payable within six weeks from the date of the order and in the event of default in payment of fine, the fifth respondent shall undergo simple imprisonment for a period of two months. As regards the first respondent Mr. Samuel James Fredrick, the second respondent Mr. N. Chandrasekaran, the third respondent Mr. M.J. Premnath, the fourth respondent Ms. P. Bhuvaneswari and the sixth respondent Mr. B. Raghavan, it is held that the prosecution has failed to establish that they have committed default in filing the statement of affairs without reasonable excuse. In view of the same, the said respondents are acquitted of the charges framed against them.

Summary

Issues Involved:
1. Failure to file the statement of affairs under Section 454 of the Companies Act, 1956.
2. Liability and reasonable excuse for non-compliance.
3. Determination of responsibility among ex-directors.
4. Application of Section 633(2) of the Companies Act for relief.
5. Conviction and penalties under Section 454(5A) of the Companies Act.

Issue-wise Detailed Analysis:

1. Failure to File the Statement of Affairs:
The official liquidator filed a complaint against the ex-directors of M/s. Indag Products Ltd. for not submitting the statement of affairs as required under Section 454(1), (2), and (3) of the Companies Act, 1956. The winding-up order was passed on February 25, 1997, and the statement of affairs should have been filed within 21 days from the date of winding up. Despite reminders, the ex-directors failed to comply, making it difficult to proceed with the company's affairs.

2. Liability and Reasonable Excuse for Non-Compliance:
The first respondent claimed he had handed over all relevant documents and records to the fifth respondent upon stepping down from the management in March 1996. The fifth respondent argued he was unaware of the winding-up proceedings at the time of taking over and had not received the necessary documents from the first respondent. The court had to determine whether there was a "reasonable excuse" for the failure to file the statement of affairs.

3. Determination of Responsibility Among Ex-Directors:
Evidence showed that the first respondent handed over some records to the fifth respondent, who took over the management. The fifth respondent admitted to negotiating with employees and creditors but claimed he did not have access to all necessary documents. The court examined whether the fifth respondent had control over the company and its records to file the statement of affairs.

4. Application of Section 633(2) of the Companies Act for Relief:
Section 633(2) allows the court to grant relief if it finds that the accused acted honestly and reasonably. The court considered whether the first and fifth respondents had acted with reasonable excuse and whether they could be exonerated under this provision.

5. Conviction and Penalties under Section 454(5A) of the Companies Act:
The court found that the first respondent had a reasonable excuse for not filing the statement of affairs, as he had handed over the management and records to the fifth respondent. The fifth respondent, however, was found to have taken steps to negotiate with creditors and employees, indicating some level of control over the company. The fifth respondent was convicted under Section 454(5) and ordered to pay a fine of Rs. 25,000, failing which he would undergo simple imprisonment for two months. The other respondents were acquitted as the prosecution failed to establish their liability beyond a reasonable doubt.

Conclusion:
The court concluded that the first respondent had a reasonable excuse for not filing the statement of affairs, while the fifth respondent was found guilty and fined. The other respondents were acquitted due to insufficient evidence of their involvement or control over the company's affairs.