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TMI Blog1940 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... auditor, and accused 3, Ramchand B Bahry, as the Managiug Agent and Director of the company, of an offence under Section 237, Companies Act. The learned Magistrate took the view relying upon three rulings in Ashutosh Ganguli v. Watson [1927] 53 Cal. 929 , Kuppuswami v. Emperor [1923] 72 175 , and Emperor v. Mahomed Usman [1933] AIR 1933 Sind. 325 , that a private individual cannot bring a complaint of an offence under Section 282, Companies Act, for the Act itself nowhere provides that a private individual may set the law in motion to prosecute for an offence under the Companies Act; further, the learned Magistrate was of the opinion that Section 5(2), Criminal Procedure Code, was a complete answer to all arguments to the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 282. Section 138 provides for an investigation into the affairs of a company by inspectors. Section 138 itself shows that such an investigation will be made only in special circumstances; and Section 141A gives the Local Government power to refer the case to the Advocate-General or the Public Prosecutor to institute proceedings, if he thinks proper, but that section, it appears to me, relates not only to offences under the Compaines Act but also to offences under the Penal Code. The words "of any offence in relation to the company for which he is criminally liable" mean, it appears to me, not only criminally liable under the Act but criminally liable under the Penal Code as well. The words in Section 141A, Companies Act, are very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case under Section 141A, Companies Act, in Surendra Nath v. Kalipada Das [1940] ILR 1940 1 Cal. 575 ; AIR 1940 Cal. 232, the Judges pointed out that Section 141A merely empowers the Government to refer to the Advocate-General or the Public Prosecutor and confers on the officers concerned authority to prosecute. In Section 237 much the same words are used, and the purpose is the same, to provide for investigation where necessary and for prosecutions of criminal offences committed by officers of the company in relation to the company and special provision is made in the section for prosecution of offences in a case where the winding up is compulsory and a case where the winding up is voluntary; but the whole scheme of the section appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though ordinarily, as a matter of prudence and common sense a Court would adjourn a complaint of offences against directors and officers of a company in relation to that company if it were informed that the company was being wound up and that the Court or the Registrar or the liquidator had taken cognizance of the affairs of the company and would institute under the appropriate section criminal proceedings, but there is in my opinion nothing in law to prevent a private person making a complaint to a Court of offences under the Companies Act or the Penal Code against directors or officers of the company in relation to the company even if the company is being wound up. There is no prohibition against proceedings without sanction as is contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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