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TMI Blog1987 (6) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies, filed a petition of complaint under section 220(3) read with section 162(1) of the Companies Act, 1956, alleging that M/s. Ramacast Ltd. and the directors who are petitioners Nos. 2 to 4 herein of the company, were under a statutory obligation to file three copies of balance-sheet and profit and loss account placed in the annual general meeting within 30 days, that the annual general meeting of the company should have been held on or before June 30, 1981, and the balance-sheet, etc ., were required to be produced in the office of the complainant on or before July 29, 1981, but that the petitioners-accused did not file the balance-sheet and profit and loss account even as on December 31, 1981, in spite of show-cause notice. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that petitioners Nos. 2, 3 and 4 are in default and under section 5 of the Companies Act, 1956, they can only be prosecuted if they are officers in default and, consequently, the conviction and sentence against petitioners Nos. 2 to 4 are liable to be quashed. The revision petition is contested by the opposite party. On behalf of the opposite party, it is contended that the decision of this court in Ajit Kumar Sarkar v. Assistant Registrar of Companies [1979] 49 Comp [Cas 909 (Cal); 83 CWN 108 where it has been held that the Assistant Registrar of Companies has the competence to file the petition of complaint as against the accused persons for offence punishable under section 220(3) of the Act answers the first point. It is also su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard is not tenable. As regards the question of admissibility of the documentary evidence being proved by P. W. 1, I am of the view that it is true that P.W. 1 is an assistant in the Office of the Registrar of Companies and has no personal knowledge about the case nor about the notices sent. He has proved the signature of the complainant in the petition of complaint and some acknowledgment receipts showing that notices were sent to the accused petitioners which were duly received by all others except one and his notice had been returned unserved by the postal authorities. The documentary evidence which have been tendered in this case are formal in nature. Mr. Mukherjee, learned advocate for the Assistant Registrar of Companies, submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company. So the conviction of and sentence on the company cannot be set aside. Learned advocate for the petitioners vehemently urges that even if the company can be convicted under section 220(2) of the Act, its directors cannot be convicted as there was no evidence that they were in default. My attention has been drawn to the provisions of section 5 of the Companies Act in which it is stated as follows : "For the purpose of any provision in this Act which enacts that an officer of the company who is in default shall be liable to any punishment, or penalty, whether by way of imprisonment, fine or otherwise, the expression 'officer who is in default' means any officer of the company who is knowingly guilty of the default, non-compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors 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, from the above observation of the learned judge, there can be no doubt that there must be evidence to show that the particular officer knowingly or wilfully permitted the default or authorised the default. But the question remains whether there is such evidence in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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