9911796707
TMI Blog2005 (5) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner Nos. 3 and 4 are the Directors of the Company. For the financial year ending 31-3-1993 the statutory Annual General Meeting (AGM) of the Company was held on 17-9-1993 and at the said meeting audited accounts of the company for the said financial year, reports of the Directors and auditors of the Company were considered and adopted. Under section 220 of the Act, the notice of AGM with audited accounts, reports of the Directors and Auditors were filed with the authority concerned. 4. On 4-11-1993 the Regional Director, Department of Company Affairs, Government of India issued a notice to the Company informing that the authorised representative of the Directorate would inspect records of the Company including balance-sheet and profit and loss accounts together with reports of Directors and Auditors for the last three accounting years. Inspection was accordingly made by the representative of the Directorate and by the letter dated 18-11-1993 the Company furnished information required by the Directorate. 5. On 21-12-1993 the Joint Director, Department of Company Affairs informed the Company that during course of inspection in relation to books of account and statutory recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 482 of the Code of Criminal Procedure. 8. Mr. Hirak Kumar Mitra, the learned senior advocate on behalf of the petitioners has challenged the impugned proceedings initiated against the present petitioners and contended that the allegations contained in the petition of complaint, even if believed to be true, do not disclose the essential ingredients of the offence punishable under section 217(5) of the Act. From the averments made in the petition of complaint copy of which is marked annexure P-8 to the instant application it appears that an inspection of the books of account and other records of the Company was carried out by an officer duly authorised by the Central Govern- ment under section 209A of the Act who reported that the Company failed to furnish the details of information in regard to the shares held by the employees exceeding 2 per cent, in the Director's report for the year 1992-93 in accordance with the provisions of section 217(2A) of the Act read with the Companies (Particulars of Employees) Rules, 1975 and the present petitioners are alleged to have committed an offence punishable under section 217(5) of the Act. It has been further alleged in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Procedure and the complainant has failed to explain the delay in the matter of filing of the complaint. It is further contended by Mr. Mitra that having regard to the special features of the case and the connected facts and circumstances it is expedient in the interest of justice that the instant proceedings should not be permitted to continue any further as the process of the Criminal Court should not be allowed to be utilized for harassing the petitioners. 11. Mr. Himangshu Dey, learned advocate on behalf of the opposite party has contended, on the other hand, that even if there was no such employee in the Company who was in receipt of remuneration which was in excess of that drawn by the Managing Director or whole-time Director or Manager of the Company and held not less than 2 per cent of the equity shares of the Company during the relevant period, it was the duty of the management of the Company to inform the authority concerned of the said fact and since it was not done, the petitioners cannot escape penal liability of the offence punishable under section 217(5) of the Act for contravention of the provisions of section 217(2A) of the Act. 12. So far as delay in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also an admitted fact that on 21-12-1993 the Joint Director (Inspection), Department of Company Affairs, Calcutta informed the Company that during course of inspection in relation to the books of account and statutory records of the Company various irregularities including omission to provide particulars of shares of the Managing Directors under section 217(2A) of the Act were found and it was specifically alleged that the Company had not furnished the details of information in regard to the shares held by the employees in the annexure to the Director's report for the year 1992-93 in terms of provision of section 217(2A) of the Act. It further appears that by the letter dated 21-12-1993 the Company was asked to furnish clarification regarding those irregularities within ten days from the date of issue of the letter. The Company asked for time till January, 1994 to furnish clarification of those alleged irregularities and on 12-1-1994 such clarification of the alleged irregularities was submitted by the Company to the Directorate. 14. The materials on record further denote that though the alleged irregularities were detected during inspection and those alleged irregularities were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. . . ." (p. 1055) 16. The ratio of the decision in the case of Sarwan Singh (supra) applies with full force to the case on hand where the prosecution has been launched after several years from the date of detection of the alleged offence. 17. The decision in the case of P.P. Sharma (supra) relied on by Mr. Dey, on behalf of the opposite party does not render any assistance to the opposite party/complainant. In the said case the annexures to the writ petition challenging criminal proceedings against the accused were neither part of the police report nor relied upon by the Investigating Officer and those documents were produced by the accused before the High Court along with the writ petition. It is in such context the Supreme Court has held that by treating the annexures and affidavit as evidence and by converting itself into a Trial Court the High Court cannot declare the accused to be innocent and quashed the proceedings. The facts of the case of P.P. Sharma (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
