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TMI Blog2004 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate of posting. Hence, the ingredients of section 113 of the Act are not attracted at all. It was further pointed out that the Registrar of Companies, who filed the complaint against the company and the managing director, cannot maintain the complaint since the said Registrar of Companies cannot be said to be aggrieved person so as to maintain such complaint. 5. Learned counsel had also pointed out to the evidence of DW1 and also exhibit D2-certificate of posting, and would contend that by certificate of posting several others were also sent and there was no complaint from any quarter whatsoever and hence, the findings recorded by the learned Special Judge for Economic Offences cannot be sustained, and therefore, the sentence imposing fine may have to be set aside and refund may have to be ordered. 6. On the contrary, on behalf of the Registrar of Companies submissions at length were made and it was contended that inasmuch as this was reported by the concerned person who can definitely be said to be an aggrieved person for non-delivery, the Registrar of Companies had initiated action, and that such complaint by the Registrar of Companies for contravention of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share certificates and the share certificates were allotted to both the persons and hence, Vasantrai N. Ashra had returned those certificates for deleting the name of the unconcerned person, and after deleting the name of the unconcerned person B. Joshi, the share certificates were sent to Vasantrai N. Ashra. The share certificates were received from Vasantrai N. Ashra as allottee for correction but not as transferee for effecting transfer of share certificates in his name and hence, section 113(1) of the Act is not applicable. 11. PW1 deposed that he has been working as Senior Technical Assistant in the office of Registrar of Companies, Hyderabad, and he knows the facts of the case. He deposed that the Secretary, Department of Company Affairs, New Delhi, vide letter dated December 5, 1996, forwarded two complaints from one Binod Kumar Chowdhary, and another one from Vasantrai N. Ashra to the Registrar of Companies, A.P., Hyderabad, stating that the share certificates sent to the accused-company by those two complainants were not transferred into their names. Exhibit P1 is the letter received from the Secretary, Department of Company Affairs, New Delhi, and exhibit P2 is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every day a fine of Rs. 10 had been imposed. Aggrieved by the same, the present appeal had been preferred. 14. ( i ) Section 113 of the Act reads as hereunder : " Limitation of time for issue of certificates. (1) Every company, unless prohibited by any provision of law or of any order of any Court, Tribunal or other authority, shall, within three months after the allotment of any of its shares, debentures or debenture stock, and within two months after the application for the registration of the transfer of any such shares, debentures or debenture stock, deliver, in accordance with the procedure laid down in section 53, the certificates of all shares, debentures and certificates of debenture stocks allotted or transferred : Provided that the Company Law Board may, on an application being made to it in this behalf by the company, extend any of the periods within which the certificates of all debentures and debenture stocks allotted or transferred shall be delivered under this sub-section, to a further period not exceeding nine months, if it is satisfied that it is not possible for the company to deliver such certificates within the said periods. The expression transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent in the manner intimated by the member; and ( b )such service shall be deemed to have been effected ( i )in the case of a notice of a meeting, at the expiration of forty-eight hours after the letter containing the same is posted, and ( ii )in any other case, at the time at which the letter would be delivered in the ordinary course of post. (3) A document advertised in a newspaper circulating in the neighbourhood of the registered office of the company shall be deemed to be duly served on the day on which the advertisement appears, on every member of the company who has no registered address in India and has not supplied to the company an address within India for the giving of notices to him. (4) A document may be served by the company on the joint-holders of a share by serving it on the joint-holder named first in the register in respect of the share. (5) A document may be served by the company on the persons entitled to a share in consequence of the death or insolvency of a member by sending it through the post in pre-paid letter addressed to them by name, or by the title of representatives of the deceased, or assignees of the insolvent, or by any like description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notices to him." 19. Learned counsel representating the appellants also placed strong reliance on sub-section (2) and would contend that the person, who had reported this matter, never had specified or suggested the mode of delivery and in such circumstances, in view of exhibits D1 and D2 coupled with the evidence of DW1, the version of defence may have to be believed. 20. In Nestle India Ltd. v. State [2000] 101 Comp. Cas. 263 1 , no doubt the Delhi High Court had arrived at a conclusion that the Registrar is not aggrieved person to maintain the complaint under section 113 of the Act. Reliance was also placed on Sulochana v. State Registrar of Chits (Investigation and Prosecution) [1978] Crl. LJ. 116 (Mad.). However, in Registrar of Companies v. Rajshree Sugar Chemicals Ltd. [2000] 101 Comp. Cas. 271 2 , the three-judge Bench of the Apex Court, while dealing with the person aggrieved and the meaning thereof in relation to the offences under the Companies Act, it was held that for failure to deliver share certificates within prescribed time, Registrar is person aggrieved and competent to file complaint. 21. Hence, in the light of the binding decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany had sent the share certificates back to the concerned by certificate of posting as evidence by exhibits D1 and D2 and also the evidence of DW1. This aspect was no doubt disbelieved by the learned Judge, which resulted in the conviction and the imposition of fine. 26. A careful reading of section 53 of the Act would go to show that unless specifically, the mode is specified under sub-section (2), it is not clearly specified how the share certificates are to be delivered. Hence, at any stretch of imagination in the absence of specific request in this regard, it can be taken that in usual course the company had sent the rectified shares by certificate of posting. It is also pertinent to note that there are no other complaints in this regard though the shares had been dispatched by the same mode to others too. Apart from this aspect of the matter, it is not the case of the respondent-complainant that the share certificates were never sent to the concerned party at all. The fact remains that a mistake had crept in and only for the purpose of rectification they were sent back to the company. Viewed from any angle, especially in the light of the version put forth by the defence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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