2019 (5) TMI 1076 - HC - Companies Law

Compounding of offences - whether the Appeal raises a substantial question of law as set out in para 7, and whether the discretion exercised by the CLB while ordering compounding of offences calls for interference by this Court? HELD THAT - There appears to be no judgment of the Supreme Court or any of the High Courts exactly delineating the parameters that could be followed in considering the compounding of cases under various jurisdictions. However, in the context of the offences alleged under the SEBI Act, SEBI had notified certain guidelines - In recent times, the NCLAT chaired by Hon'ble Sri Justice Sudhansu Jyoti Mukhopadhaya, retired Supreme Court Judge in VIAVI SOLUTIONS INDIA (P.) LTD. VERSUS REGISTRAR OF COMPANIES, NCT DELHI AND HARYANA 2016 (2) TMI 1067 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI had broadly set out the parameters that are required to be noticed in compounding the offences. It cannot be said that the CLB failed to apply the parameters for compounding the offences for which prosecution has been laid. If one looks at the question of law raised, in the settled legal principles, it is really not a substantial question of law as what all has been questioned is the wisdom of the CLB in exercising discretion by accepting the compounding applications. The penalty imposed for compounding is substantially high which would serve as a deterrent in future to the respondent and also similarly-situated entities / persons. Since there is no merit in the Appeal and the decision of the CLB having been based on the material placed before it, and that no question of perversity of finding of fact having been raised. Appeal does not warrant interference at the hands of this Court and the same is liable to be dismissed.

Summary

Issues Involved:
1. Whether the discretionary power under Section 621-A of the Companies Act, 1956 should be exercised to compound serious violations without attracting the "stigma of conviction".
2. Whether the CLB's decision to allow compounding of offences was made without proper consideration of objections and evidence.
3. Whether the appeal raises a substantial question of law.

Issue-wise Detailed Analysis:

1. Discretionary Power under Section 621-A:
The appellant argued that the respondent company failed to obtain prior approval from the Central Government before entering into contracts, thus contravening Section 297 of the Companies Act, 1956. The appellant contended that these violations were serious and affected public interest, and thus, the CLB erred in allowing compounding of offences in a casual manner. The respondent, on the other hand, argued that the scope of appeal under Section 10(F) is limited to substantial questions of law, and the CLB's discretion in compounding the offences should not be re-evaluated. The court noted that Section 621-A of the Act allows for the compounding of offences not punishable with imprisonment only or with imprisonment and fine, aiming to reduce litigation as most offences under the Act are technical. The court found that the CLB had considered the peculiar facts and circumstances, including the takeover of the respondent company by a new promoter, and thus, the argument of non-application of mind did not hold.

2. Consideration of Objections and Evidence:
The appellant claimed that the CLB failed to consider objections raised, which amounted to non-application of mind, and that compounding the offences would exonerate the respondent from criminal prosecution. The court observed that the CLB had taken into account the change in management and the subsequent developments related to M/s Satyam Computers Limited. The court also referred to the Supreme Court's judgment in JIK Industries Limited v. Amarlal V. Jumani, which dealt with compounding offences under the Negotiable Instruments Act, and found it distinguishable. The court emphasized that compounding applications under the Companies Act should be considered applying principles analogous to Section 320 of the Cr.P.C., and noted that the CLB had applied the relevant parameters, thus, the appellant's argument lacked merit.

3. Substantial Question of Law:
The court examined whether the appeal raised a substantial question of law. The appellant argued that the CLB's discretion in compounding the offences was questionable, while the respondent contended that the appeal did not raise any substantial question of law. The court concluded that the question raised pertained to the wisdom of the CLB in exercising its discretion, which does not constitute a substantial question of law. The court found that the penalty imposed for compounding was significantly high, serving as a deterrent for future violations, and thus, the appeal did not warrant interference.

Conclusion:
The court dismissed the appeal, holding that the CLB had applied the relevant parameters for compounding the offences and that no substantial question of law was raised. The decision of the CLB was based on the material placed before it, and there was no finding of perversity. The appeal was dismissed with no order as to costs.