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TMI Blog1966 (7) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 on each count passed on each of them thereunder. Madan Gopal Dey and Sm. Anjali Dey were sentenced to suffer simple imprisonment for 14 days each in default of payment of fine and half of the fine imposed in all these cases was directed to be paid to the Registrar of Joint Stock Companies, if realised, as cost. T. Dey and Co. (Private) Limited was incorporated on December 12, 1960, and Madan Gopal Dey and Sm. Anjali Dey were declared to be its first directors. The charge under section 162(1) of the Companies Act relates to the failure of the company as well as of its directors to prepare and file with the Registrar under section 159 of the Act the annual return within 42 days of the annual general meeting. The charge under section 168 of the Act arises out of the failure of the company as well as of its two directors to hold the first annual general meeting as required by section 166 of the Act. The charge under section 220(3) of the Act relates to the violation of the requirement of section 220(1) thereof which requires the company and every officer of the company in default to file the balance-sheet and the profit and loss account of the company with the Registrar, while the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, one under sections 323 and 504, Indian Penal Code, and the other two under section 323, Indian Penal Code, only for offences committed on different dates were amalgamated and sought to be tried together. This order for amalgamation was set aside and the cases were directed to be tried separately. Mr. Talukdar appearing on behalf of the opposite party in these cases referred to the case, Dulal Chandra Bhar v. State of West Bengal [1962] 32 Comp. Cas. 1143; 66 C.W.N. 852. That case arose out of prosecution of a private limited company and its four directors under the four sections as in the present cases. In all, 25 cases were tried in 14 groups, only one witness was examined and copies of that evidence were put in the other groups of cases with the consent of the defence lawyers. All the 25 cases in the 14 groups were disposed of by the same judgment. The procedure followed by the learned Magistrate was upheld by Amaresh Roy J. on the ground that the defect at the trial would be "non-compliance of sections 356 and 360 of the Code and such defect, in the absence of actual or possible failure of justice, would be cured by sections 535 and 537 and would not affect the legalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge is default or failure to take action is not inconceivable. If the action required to carry a thread of continuity, the failure to take the action would constitute omissions which, connected together, will have a continuous thread of common purpose running through them. In my view the defaults and omissions in the present cases constitute a series of acts which are so connected as to form the same transaction and as such whatever offences might have been committed in the course of that transaction are liable to be joined together under section 235 of the Code for the purpose of a single trial. Section 239 of the Code permits the joinder at the same trial of persons accused of the same offence committed in the course of the same transaction. The directors as well as the company were thus liable to be jointly tried and the learned Magistrate cannot be said to have fallen into an error of law in jointly trying the petitioners in these seven cases at the same trial. Coming now to the second contention raised on behalf of the petitioners, as I have already stated, exception was not taken to the conviction of the company in the cases out of which arise Criminal Revision Cases Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary, without more, has no duty under the Act in that regard. The case, Surendra Nath Sarkar v. Emperor [1942] 12 Comp. Cas 252 ; A.I.R. 1942 Cal. 225 , is another case cited on behalf of the petitioner on this point. That was a case where the managing director of a company was convicted under section 32 corresponding to section 162(1) of the present Act for wilful default in submitting the annual return. It was held that, before he could be so convicted, it must be found that he was responsible for the default. The managing director, as the report of the case shows, had previously been convicted under section 76 of the Act for default in respect of the holding of the general meeting. This case no doubt supports the petitioners' contention. The learned advocate for the petitioners also referred to the case, In re Bank of Deccan Ltd. [1960] 30 Comp. Cas. 284 ; A.I.R. 1960 Ker. 15. The subject-matter of the decision in that case was the scope of section 633(1) and the powers of the High Court under section 633(2) of the Companies Act. There relief was granted to the company for its failure to prepare the balance-sheet and profit and loss account on the ground that, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the directors. When the directors fail to perform their statutory duty, they bring themselves within the mischief of the penal provisions of the law. In order that a conviction, under the sections involved in the present cases, of "an officer of the company" may be sustained, the only thing to prove is that that particular officer knowingly and wilfully authorised or permitted these defaults. The offence is complete if the officer of the company knew of the defaults and permitted the same. So far as the present cases are concerned, it would appear that, since its incorporation, nothing was done either by the company or by its two directors to comply with the provisions of the Indian Companies Act. It is the petitioners' case that the company did not function and so it was impossible either to call a general meeting of the company or to prepare the balance-sheet and the profit and loss account or to submit the annual return. If the company did not function, the Act provides for winding-up proceedings. It is not for the Registrar of Joint Stock Companies to know whether a company is functioning or not. All that he is concerned with is compliance with the provisions of the Act, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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