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TMI Blog1973 (8) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... d A.V. Rangam for the Appellant. L. N. Sinha and A. V. V. Nair for the Respondent. JUDGMENT Alagiriswami, J. This is an appeal against the judgment of the Full Bench of the Andhra Pradesh High Court reported in Andhra Provincial Potteries Ltd. v. State of Andhra Pradesh [1969J 39 Comp. Cas. 1000 (F.B.); A.I.R. 1970 A.P. 70 . It arises out of a complaint filed against the first respondent-company and its directors for failure to file with the Registrar of Companies on or before October 30, 1967, the balance-sheet and profit and loss account of the company as required under section 220(1) of the Companies Act, 1956, which is punishable under sub-section (3) of that section. Admittedly, no general body meeting had been held and, therefore, the balance-sheet and profit and loss account had not been laid before a general body meeting nor could it be so laid. The Full Bench speaking through Jaganmohan Reddy C.J., as our learned brother then was, held that if no balance-sheet is laid before a general body, there can be no question of that balance-sheet not being adopted nor of complying with the requirements of section 220 and though wilful omission to call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as an answer to the charge, and so, if the person charged was responsible for not calling the general meeting, he cannot be heard to say in defence to the charge that the general meeting had not been called, and that the company and its officers were bound to perform the condition precedent if they could do that, in order that they might perform their duty, this court considered that as the correct view to take. As we have noticed, this court was not dealing there with the provisions of section 134 of the 1913 Act which corresponds to section 220 of the 1956 Act. That question now directly arises for decision in this case. As we said earlier, most of the High Courts which have considered this question after the decision of this court have proceeded on the basis that the decision necessarily led to the conclusion that even in a prosecution under section 134 of the 1913 Act (corresponding to section 220 of the 1956 Act), the company and its directors could not rely upon their failure to call the general body meeting as a defence to the prosecution. Under this category fall the decisions in Dulal Chandra Bhar v. Slate of West Bengal [1962] 32 Comp. Cas. 1143 (Cal.) and Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same years with offences punishable both under sections 131 and 134, Companies Act, because section 134 clearly contemplates the sending of a copy of the balance-sheet only after it has been placed before the company at a general meeting under section 131 and that where in a case there is no such placing of the balance-sheet before the company at a general meeting the offence under section 134 cannot be committed. In In re Gangipati Appayya [1952] 22 Comp. Cas. 78; A I. R. 1952 Mad. 800 a view contrary to the one taken earlier by a judge of that High Court was taken. We may now set out the reasoning which weighed with the Andhra Pradesh High Court in the decision under appeal: "The reference to section 210 by the use of the word ' aforesaid ' and the emphasis indicated by the words ' were so laid ' make the filing of copies of these balance-sheets and the profit and loss accounts which are laid before the general body meeting an essential prerequisite. If no general body meeting is held, it is obvious that no copies of the balance- sheet and profit and loss account can be filed even though the default may be willful. Both under section 134 of the old Companies Act and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sented before this court, the learned Additional Solicitor-General who appeared for the State of Andhra Pradesh and the learned Solicitor-General who appeared for the Advocate-General of Andhra Pradesh fairly placed before this court all the decisions for and against, which we have already referred to, and also placed before us all the relevant considerations. It was urged before us that the principle accepted by this court in Bandhan Ram Bhandani's case ( supra ) that a company or its directors in a prosecution under section 32 and section 133 of the 1913 Act could not in defence to such prosecution rely upon their own failure to call the general body meeting, applies with equal force to a prosecution under section 134 of the Act. But it appears to us that there is a very clear distinction between sections 32 and 133 on the one hand and section 134 on the other. Section 32 relates to the preparation of a list of members of the company and of persons who have ceased to be members as well as a summary and also provides that it shall be completed within 21 days after the day of the first or only ordinary general meeting in the year. It also provides that the company shall forthwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be interpreted in the same way. We may also point out that in Park's case ( supra ) the principle laid down in which has been adopted in this court's decision in Bandhan Ram Bhandani's case ( supra ), it is realised that there might be circumstances where the principle laid down in that decision will not apply. The court there observed : "If it were the case that everything required to be inserted in the list was dependent on the fact of the general meeting having been held, it might perhaps have been contended with some force that it is impossible to calculate a continuing penalty from a day which has never come into existence; but when one sees that section 26 requires a number of most important matters to be included in the list of members which are entirely independent of the holding of a general meeting, this very much weakens the contention that no list need be compiled if, owing to the failure to hold a general meeting, it is impossible to say what day is the fourteenth day thereafter". This observation may provide no defence to a prosecution under section 133 but it might well do so in a prosecution under section 134. This was what the learned Solicitor-Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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