9911796707
TMI Blog2006 (6) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ectus was registered in the office of the Registrar of Companies (complainant) on 4-8-1994. It was stated in the prospectus that the company was proposing to acquire one more 30 metre Tuna Longliner- cum -Stern Trawler at a cost of Rs. 495 lakhs (US $ 15,59,000 approx.) with fishhold capacity of 7,200 cubic feet from Sea Tech International, Inc., U.S.A. having experience in fishing vessel operations and the vessel would be delivered initially with sufficient quantity of spares and the delivery of the vessel was expected in October, 1994, and the company would commence its commercial operations by November 1994, as per the schedule of implementation of project as given in the prospectus. The public issue opened for subscription on 31-8-1994, and closed on 5-9-1994, and was subscribed about 1.2 times. It is alleged that the company has not acquired the Tuna Longliner- cum -Stern Trawler from M/s. Sea Tech International, Inc., U.S.A. as promised in the prospectus and thereby contravened the requirement under section 628 of the Companies Act. A show-cause notice dated 12-6-2002, came to be issued to the company and its directors including the petitioner. D. N. Prasad (A3), on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts filed before him, with the assistance of his competent officers, and find out the irregularities committed by the petitioner-company, at least from the date of filing of the balance sheets. At least from the date of receipt of the reply to the notice, the knowledge of the commission of offence could be presumed, if not from the date of notice. Knowledge is an inferential fact from the facts established. 9. In the third cited decision, our High Court observed that once limitation begins to run it cannot be stopped. Paragraph 13 of the judgment needs to be noted and it is thus : "13. Sub-section (2)( a ) of section 468 makes if the offence is punishable with fine only, the period of limitation is six months. In the present case, the offence under section 205A(8) of the Act is punishable with fine only. The complaint has to be filed within six months. The inspection of the company took place on 29-9-1997. The first respondent-complainant has filed the complaint on 15-4-1998. It is beyond the six months period. When once the limitation begins to run it cannot be stopped. Hence, I am of the considered opinion that the complaint is filed beyond the period of limitation. I see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly provided the Act, be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. 15. The learned standing counsel appearing for the first respondent submits that the first respondent-complainant came to know of the offences through the Regional Director s letter dated 20-5-2002, and therefore prosecution of the petitioner for the offences alleged are not barred by limitation. He refers to paragraph 9 of the complaints. It would be suffice paragraph 9 of the complaint in C.C. No. 299 of 2002, is extracted and it is thus : "9. That the subject offence is well within time and is not barred by limitation as the complainant has come to knowledge about the offence through the Regional Director s letter No. 2/AP.5955/1989, dated 20-5-2002, which was received in this office on 29-5-2002. Hence, the knowledge of offence starts from 29-5-2002." 16. Undisputedly, a show-cause notice came to be issued to the company as well as its directors including the petitioner herein on 12-6-2002. 17. Learned counsel appearing for the petitioner strenuously contends that the respondent-complainant had knowledge even much prior to 29-5-2002, si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to case in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. 24. Keeping in view the principles of law as enunciated above, with regard to quashing of complaint in exercise of powers under section 482, Criminal Procedure Code, I proceed to consider the various contentions raised by the parties. 25. The principal contention of the petitioner is that the complaints are barred by limitation. In a way he would submit that the offences under sections 63 and 628 of the Companies Act, 1956, are punishable with imprisonment for a term which may extend to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person so charged has given his consent in this behalf to the board; ( g )where any company does not have any of the officers specified in clauses ( a ) to ( c ), any director or directors who may be specified by the board in this behalf or where no director is so specified, all the directors : Provided that where the board exercises any power under clause ( f ) or clause ( g ), it shall within thirty days of the exercise of such powers, file with the Registrar a return in the prescribed form." 27. As seen from the averments of the complaints, a show-cause notice has been issued to all the directors. A reply came to be issued to the show-cause notice by D. N. Prasad, who has been arrayed as A3, not only on his behalf but also on behalf of the petitioner and other directors. There seems to be no stand taken by the petitioner in the reply that he is not the officer in default as enumerated in section 5 of the Act. A specific averment has been made by the complainant in the complaints that all the directors are responsible for the mis-statements made in the prospectus which induced the public to subscribe equity shares of the company. In that view of the matter, I do not see ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
