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TMI Blog1971 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1964 but due intimation of the same had not been communicated by the company to the Registrar (Respondent). It is further stated that petitioners Nos. 1 and 2 felt discouraged on account of the resignation of the third petitioner and on that account the idea of running the business of the company was dropped. On April 7, 1969, the third petitioner wrote to the Registrar (copy of which is annexure "B" to the petition) that two years earlier she had resigned and was left with the impression that her resignation had been forwarded to him for necessary action. She requested that she may be relieved of the consequence of any default. It is stated that there was a reply (which is not on record) to the above said letter, on May 28, 1969. On June 5, 1969, the third petitioner wrote to the Registrar (exhibit R-1) informing the Registrar that the company did not start functioning, that due to certain unavoidable circumstances the requirements under the Act for submitting the accounts, etc., could not be completed well in time and so a default notice had been served. She again referred to her being under the impression that her resignation had been accepted and requested for an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their liabilities from filing the return under the Companies Act in respect of the years 1969 and 1970 in spite of the Registrar of Companies having been informed that the company has never functioned and never did any business? ( ii )Whether the pending prosecutions are not liable to be quashed?" It was stated by Shri A.B. Saharia, learned counsel for the Registrar that he was not letting any evidence except to tender exhibits R-1 to R-13 Shri Satish Chandra, learned counsel for the petitioners, also did not insist to examine any one. Issue No. 1: The contention of Shri Satish Chandra that it was the duty of the Registrar to strike off from the registers a defunct company does not receive any support from the language of section 560, the material portion of which reads as follows: "560(1). Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation." "560(5). At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even suo moto if he is satisfied, that a company is defunct and strike off the name (of the company) from the Register. Though no such relief could be granted to the petitioner, still I would like to express the hope that the Registrar would himself take steps under section 560 at least after the pending prosecutions are over, as he himself indicated in exhibit R-2. Issue No. 2: P. Jaganmohan Reddy C. J. (as his Lordship then was), speaking for the Full Bench in Andhra Provincial Potteries v. Registrar of Companies [1969] 39 Comp. Cas. 1000 ; AIR 1970 AP 70 [FB] , held that an annual general meeting and laying before it of a balance-sheet and profit and loss account is essential for a prosecution under section 220(3) but that the holding of such meeting was not necessary for prosecution for default committed under sections 159 to 166 and 210. The case law as well as the relevant statutory provisions were discussed at length. His Lordship explained- that the relevant provisions unmistakably indicated that the holding of the annual general meeting and the laying before it of the balance-sheet and the profit and loss account is sine qua non for filing of copied thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y did not function is, in my view, no excuse, though it might extenuate the offence to some extent." To say anything else, it seems to me, would be to detract from the duties which have been squarely laid on the Registrar in the matter of enforcing the submission of returns, etc., in order to safeguard the interests of sharer holders. The Companies Act also specifically excludes metis rea as a constituent element of the offence. According to section 162 of the Companies Act, a fine extending to Rs. 50 for every day during which the default continues hasbeen prescribed in respect of a company which "fails to comply with any of the provisions contained in section 159, 160 or 161". Gopal Khaitan v. State [1969] 39 Comp. Cas. 150 ; AIR 1969 Cal. 132 pointed out other offences under the Companies Act, where different considerations apply and where metis rea has not been excluded. Where there is "failure" to comply with the statutory provisions concerned and where mere failure is made punishable, it is a clear indication that metis rea is ruled out. There is yet another reason for not granting the relief of quashing the criminal prosecutions. These are applications under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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