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TMI Blog1995 (5) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant came to know of the allotment through her broker, Shri S.C. Jain, who received the brokerage amount in respect of the application made by the complainant. The shares were required to be sent by the petitioner-company on or before November 1, 1992, but the shares were not sent. According to the conditions incorporated in the prospectus, the company had undertaken to allot the shares within 10 weeks of the close of the public issue and the shares were required to be sent by registered post to the address given in the application form itself. Since the shares were not sent within the stipulated time; violation of provisions of sections 61, 73 and 113 of the Companies Act was alleged. For the alleged contravention of the provisions of section 61 it was prayed that an enquiry be made into the conduct of the accused and the accused be punished under section 63 of the Companies Act. And that for the breach of section 73 the punishment as provided under section 73(2B) of the Companies Act was prayed for. In respect of contravention of the provisions of section 113 it was stated that the punishment of fine upto Rs. 500 per day during the period of default be awarded and the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The designation of a person as chairman cannot be considered as not falling within the definition of "officer who is in default" unless it is so provided by the memorandum and articles of association of the company and/or by agreement entered into with him as to what are his duties. Similarly, the question as to whether clause ( a ), ( b ) or ( c ) is applicable so as to exclude the other directors is also to be determined with reference to the documents which may be placed before the trial court and on that point no interference at this stage can be made. It is also submitted by learned counsel for the petitioner that 100 shares were allotted to Mrs. Renu Jain and they were sent by registered post and the petitioner itself has written to her to send an indemnity bond duly signed so that the duplicate share certificate may be issued to her. Since she failed to do the same the complaint could not have been filed. It is submitted that annexure 2 is a public document with regard to the certificate issued by the postal authorities and, therefore, it should be presumed that the obligation which was on the petitioner-company has also been discharged. It is submitted that section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial court has no jurisdiction. Learned counsel for the respondent has submitted that the application was submitted at Jaipur and the amount was also collected at Jaipur. The company was acting through its agents at Jaipur and, therefore, the Special Court of Judicial Magistrate (Economic Offences), Rajas-than, Jaipur, has jurisdiction. The question also involves certain factual position and it cannot be examined in a petition under section 482 of the Criminal Procedure Code. The petitioner could raise this point before the trial court. It is submitted that the complaint is barred by limitation as it was filed beyond six months and no cognizance could be taken in accordance with the provisions of section 468 of the Criminal Procedure Code. Learned counsel for the respondent has relied on the decision of the Madras High Court given in the case of Ghanshyam Chaturbhuj v. Industrial Ceramics P. Ltd. [1990] 68 Comp Cas 36 (Mad), wherein the decision of the Calcutta High Court in the case of Ajit Kumar Sarkar v. Assistant Registrar of Companies [1979] 49 Comp Cas 909 (Cal) was referred to and it was held that the offence under section 113 of the Act is a continuing offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers appearance after being summoned. Reliance has been placed on the decision of the Delhi High Court in the case of Thirani Chemicals Ltd. v. Registrar of Companies [1994] Cri. L.J. NOC 195 (Delhi). The decision of Nagawwa ( Smt. ) v. Veeranna [1976] AIR 1976 SC 1947, has also been relied to show that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into it in its revisional jurisdiction which is a very limited one. It was observed that in the following cases, the order of the Magistrate issuing process against the accused can be quashed (page 1951): "(1)Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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