9911796707
TMI Blog2000 (11) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... nta Lucky Scheme Investment (P.) Ltd. and also ordered the removal of the voluntary liquidator. Accordingly, the voluntary liquidator was directed to hand over the assets and records of the company with the statement of affairs under sections 454 and 511A of the Act, etc., to the Official Liquidator. 2. Company Petition No. 94 of 1991 was disposed of by this Court vide its order dated 30-7-1993. A perusal of the order passed in Company Petition No. 94 of 1991, reveals that the two directors, Dharam Bir Bhalla and Arvind Bhalla after putting in appearance in Company Petition No. 94 of 1991, stated that they were not in possession of the assets, books of account and records of the company as the same had been handed over by them to the voluntary liquidator, Sushil Kumar. In this behalf it would be pertinent to mention here that this Court, during the course of proceedings in Company Petition No. 94 of 1991, recorded the statement of Dharm Bir Bhalla and Arvind Bhalla on 30-7-1993. The fact that they were not in possession of the aforesaid record and that the aforesaid record had been handed over by them to the voluntary liquidator, Sushil Kumar was also affirmed by them in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quandary filed Company Petition No. 29 of 1997, alleging therein that Dharam Bir Bhalla and Arvind Bhalla were deliberately and wilfully shifting their responsibility to hand over the possession of assets, books of account and other records of the company to the Official Liquidator in compliance with the order passed by this Court in Company Petition No. 94 of 1991, on 30-7-1993. In Company Petition No. 29 of 1997, the prayer made by the Official Liquidator is that Dharam Bir Bhalla and Arvind Bhalla, directors of Ajanta Lucky Scheme Investment (P.) Ltd. be summoned, tried and convicted under section 538 of the Act. 5. Pointed attention of this Court has been invited to section 538. The relevant extract thereof is being reproduced hereunder : " Offences by officers of companies in liquidation. (1) If any person, being a past or present officer of a company which, at the time of the commission of the alleged offence, is being wound up, whether by or subject to the supervision of the court or voluntarily, or which is subsequently ordered to be wound up by the court or which subsequently passes a resolution for voluntary winding up, ( a )does not, to the best of his know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of discharge of the employees of the company and cessation of powers of the directors." On the basis of the aforesaid extract, the learned counsel has vehemently argued that a voluntary liquidator is merely an agent representing the board of directors and that the appointment of liquidator does not have the effect of negating the responsibilities of the directors. 6. In view of the factual position adopted by Dharam Bir Bhalla and Arvind Bhalla who were duly served in Company Petition No. 29 of 1997; Company Application No. 668 of 1998 was filed on behalf of the Official Liquidator under section 477 of the Act, with a prayer that respondent Nos. 1 and 2 may be summoned, examined and directed to give full particulars of Sushil Kumar, the voluntary liquidator of the company. Despite notice in the aforesaid company application to Dharam Bir Bhalla and Arvind Bhalla and despite this Court requiring them to furnish to this Court all particulars known to them about the voluntary liquidator, Sushil Kumar, they continued to assert through their counsel that they had no information about the whereabouts of Sushil Kumar who had been appointed as voluntary liquidator for Ajanta Lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Liquidator because the statement of affairs had been filed by him before the voluntary liquidator. Arvind Bhalla, who is the son of Dharam Bir Bhalla, stated that his father had filed the statement of affairs before the voluntary liquidator. In view of the aforesaid factual position, they asserted that they had handed over the entire assets and records to the voluntary liquidator and could not, therefore, be expected to be in possession of the records. Besides assailing the factum of appointment of the voluntary liquidator and the filing of statement of affairs before him, it was pointed out that Gopal Krishan, attorney of the voluntary liquidator, Sushil Kumar had addressed a communication on 3-12-1980, to the Registrar of Companies informing him about the appointment of Sushil Kumar as the Official Liquidator of Ajanta Lucky Scheme Investment (P.) Ltd. To show that the voluntary liquidator had taken charge from the board of directors of the aforesaid company, a public notice issued by the voluntary liquidator inviting claims for settling the list of the creditors was also brought on records of C.P. No. 93 of 1991, by the aforesaid Dharam Bir Bhalla and Arvind Bhalla. While d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of section 403(2) of the Criminal Procedure Code. . . ." (p. 1383) The aforesaid legal position has also been reiterated in the latter case. 10. In view of the finding of fact recorded in Company Petition No. 93 of 1991, in the order passed by this Court on 12-5-1995 (relevant extract already reproduced above) that accused No. 1 and accused No. 2, Dharam Bir Bhalla and Arvind Bhalla had filed the statement of affairs with the voluntary liquidator and that there was nothing on the record to rebut the said statement, the aforesaid finding of fact must be deemed to have acquired finality between the parties for all intents and purposes and that the aforesaid issue could not be reopened any more. Besides the aforesaid submission, the learned counsel for accused Nos. 1 and 2 argues that even in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
