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TMI Blog2009 (3) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal complaint that the said accused Nos. 2 to 4 are directors/officers of REL in terms of the Annual Return dated 29-9-2001 and the latest Form 32. The RoC received a complaint dated 10-10-2002 from one Gaurav Rishi alleging that some of the directors of REL have been trying to illegally sell the shareholding of REL. A show-cause notice dated 20-11-2002 was accordingly issued by the RoC to REL seeking certain information. Annexure-3 to the criminal complaint was the copy of the said show-cause notice together with the replies received thereto from REL. It is stated that on 23-12-2002, a further notice was sent by the RoC to REL to produce certain statutory registers and relevant records. It is alleged that since accused Nos. 1 to 4 had failed to produce the said records, they had rendered themselves liable for penal action in terms of section 234(4)(a) of the Act. 3. Summons were ordered to issue to the accused on the basis of the aforementioned criminal complaint on 31-1-2005 by the learned ACMM by the following order :- "Fresh Complaint filed be checked and registered. Present: Shri P.K. Batta, Dy. RoC of Companies along with Company Prosecutor. The present complaint has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-7-2002. Thereafter, Gaurav Rishi attained majority. Smt. Sushma Rishi then used that opportunity to extract further money from the petitioners. It is stated that all of these facts were brought to the notice of the RoC in the reply dated 9-12-2002 in response to the letter dated 20-11-2002 written by the RoC to it. It was specifically pointed out in the reply that Gaurav Rishi did not hold any shares in REL and further that as on that date, the shareholding held by J.C. Rishi was still pending transfer. It is further pointed out that on 27-1-2003, a detailed reply had been sent to the show-cause notice dated 23-12-2003 stating that the office of RoC should not be used for the ulterior motives of individuals and that the notice issued was ill conceived. Reference is also made to the letter written by the Chartered Accountant of REL to the RoC on 8-2-2003 referring to the meeting held on 31-1-2003. This was followed by a further letter dated 5-3-2003 stating that on 4-2-2003, certain records had been shown to the RoC. It is further specifically stated as under :- "In the Board of Directors meeting held on 28-6-2002, Dr. J.C. Rishi was appointed as Managing Director of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaurav Rishi hold any shares in Rishi Electronics Ltd." has also been placed on record. 8. In the reply filed to this petition, there is no denial at all by the RoC of the receipt of the aforementioned numerous replies given by REL to the various show-cause notices and letters written by it to REL. Surprisingly, the stand taken by the RoC is that of denial for want of knowledge or that "they are matter of record and hence merit no reply". The reference is made only to the letter dated 27-3-2003 written by REL informing the RoC that certain records were not available and therefore it had not been possible for REL to produce copies of Annual Returns from 1984 to 1993. It is stated that the complaint was based on the order of the Regional Director (Northern Region), Kanpur dated 1-10-2003 directing the RoC to file the present complaint. In the written submission filed on behalf of the RoC, it is sought to be contended that the complaint is not barred by limitation since the failure to comply with section 234(2)/(3) is a continuing offence. Reliance is placed on the judgment of the Supreme Court in Bhagirath Kanoria v. State of Madhya Pradesh AIR 1984 SC 1688. It is also stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne hand, acting on her behalf and on behalf of her children Gaurav Rishi and Gauri Rishi, and the petitioners herein on the other hand. They refer to the settlement arrived at in the civil litigation. They enclose the letter written by the father of Gaurav Rishi and the husband of Sushma Rishi to REL specifically stating that neither Sushma Rishi nor Gaurav Rishi held any share. In the teeth of all these replies, it is surprising that the RoC proceeded only on the basis of a single letter of 10-10-2002 by Gaurav Rishi asserting that he was a shareholder when perhaps the records show otherwise. 13. The explanation for not filing the complaint within the stipulated period of six months from the date of the offence is also surprising. From the show-cause notice dated 23-12-2002, it is seen that the company had been asked to produce the complete books of account for the years "1998-99, 1999-2000 and 2000-01". It has also been asked to furnish copy of Annual Returns and Balance Sheets for the last three years. The question of deliberate non-compliance with the said direction to produce documents is not possible to be inferred on a perusal of the replies to the show-cause notices. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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