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TMI Blog1994 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... athy for the Respondent. JUDGMENT Patra, J. - The Registrar of Companies, Orissa, being felt aggrieved by the order passed by the Second Additional Sessions Judge, Cuttack, in Criminal Appeal No. 68 of 1983 acquitting the respondent of the offence of default in filing the balance sheet of the company in time punishable under section 220(3) of the Companies Act, 1956 ('the Act') has filed this appeal. 2. The appellant filed complaint against Kalinga Advertising and Market-ing (P.) Ltd. ('the Company') and five different individuals including the respondent (each of them being described as Director except one P.K. Das who was described as Managing Director) on the allegation that the balance sheet of the company was not filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-filing of the balance sheet within time. This order of acquittal as already noted is subject-matter of challenge in this appeal. 4. When the case was called yesterday (17-1-1994) for hearing, there was no appearance on behalf of the appellant and I heard Shri Tripathy, the learned counsel for the respondent and adjourned the matter for today. Today also there is no appearance on behalf of the appellant. I have perused the impugned judgment, the evidence on record and heard further the learned counsel for the respondent. 5. The moot question which arises for consideration in this appeal is whether the respondent could be held to be an officer of the company in default in complying with filing of the balance sheet in time. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-compliance, failure, refusal or contravention mentioned in that provision, or who knowingly and wilfully authorises or permits such default, non-compliance, failure, refusal or contravention." [Emphasis supplied] 7. The expression 'officer who is in default', as it stood prior to 1988 amendment, came up for consideration before the Calcutta High Court in Ajit Kumar Sarkar v. Assistant Registrar of Companies 1979 Tax LR 2001. It was a case where validity of the order passed by the Metropolitan Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 3-5-1990], and ( i ) Registrar of Companies v. Bipin Behari Nayak [Criminal Appeal No. 41 of 1985, dated 6-7-1993]. 8. In paragraphs 2, 5 and 6 of the complaint, it was alleged that balance sheet of the company which ought to have been filed by 10-7-1977 at the latest was submitted on 9-3-1979 after delay of 22 months and 28 days and for such default in complying with the provisions of sub-section (1) of section 220, the officers of the company committed the offence punishable under sub-section (3) of section 220. The meaning of the expression 'officer in default' as was provided in section 5 of the Act at the relevant time was any officer of the company who was knowingly guilty of the default, etc., or who knowingly or wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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