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TMI Blog1991 (6) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 220(3) of the Companies Act, 1956, pending before the learned Metropolitan Magistrate, Seventh Court, Calcutta. The petitioner is a director of Clyde Fan Company Private Limited. Shri S. K. Bhattacherjee, the Assistant Registrar of Companies, West Bengal, filed a complaint before the learned Chief Metropolitan Magistrate at Calcutta, alleging, inter alia, that the annual general meeting of the company should have been held in accordance with the provisions of the Companies Act, 1956, on or before June 30, 1983, and the balance-sheet and profit and loss account of the company for the year ending on December 31, 1982, were required to be filed under section 220(1) Of the Companies Act in the office of the complainant on or before Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, illegal, improper and without jurisdiction. It has been contended that there is no material in the petition of complaint to show that the petitioner is an officer of the company as contemplated under section 220(3) of the Companies Act, and is also in default; and, in the absence of such material, the learned Magistrate has no competence, authority and/or jurisdiction to take cognizance of the case and initiate the proceeding. Secondly, it has been contended that the petitioner could not prepare the balance-sheet and profit and loss account and hold the annual general meeting of the company for consideration of the accounts due to circumstances absolutely beyond the control of the petitioner. It has been alleged that though the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 1956, three copies of the balance-sheet and profit and loss account duly placed in the annual general meeting are to be filed with the Registrar of Companies within 30 days of the general meeting and, in case no annual general meeting was held, within 30 days from the last date on which the annual general meeting should have been held in accordance with the provisions of the Act. Sub-section (3) of section 220 provides that, if default is made in complying with the requirement of sub-section (1) or (2), the company and every officer of the company who is in default are liable to the like punishment as provided by section 162 for a default in complying with the provisions of sections 159, 160 or 161. It is clear, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in default" under section 5 read with section 2(30). In view of the allegations made in paragraph 6 of the plaint, it cannot be said that no prima facie case has been made out against the petitioner. The details as to how the petitioner was knowingly guilty of the default or knowingly authorised or permitted such a default are matters of evidence. Mr. Ghosh, relying upon a single Bench decision of this court in the case of Ajit Kumar Sarkar v. Assistant Registrar of Companies [1979] 49 Comp Cas 909 (Cal), has contended that, in the absence of any averment in the petition of complaint as to which of the directors was specifically in default and in what respects in complying with the provisions of the Companies Act, 1956, the cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were put on facts of the default. This presumption is rebuttable on evidence. Mr. Ghosh does not dispute this proposition of law but contends that the notice of default was served on the company and not on the petitioner. But from the records produced by opposite party No. 2, it appears that there was an order for sending the notice of default to all the directors including the present petitioner and an affidavit has been filed on behalf of opposite party No. 2 that, during shifting of office to another place, records like dispatch register, etc., were found missing. The averment in the affidavit that the notice was sent to all directors has not been challenged by the petitioner in any affidavit-in-opposition though sufficient time an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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