9911796707
TMI Blog2008 (1) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, 1973 ("Cr. PC"). The other prayers include the quashing of the complaint (Company Case No. 227 of 2001) titled Registrar of Companies v. DCM Ltd. pending in the court of the Metropolitan Magistrate ("MM"), New Delhi and the further proceedings consequent thereto including an order dated 11-4-2002, of the learned Metropolitan Magistrate summoning the petitioners to face trial for the contravention of section 349(4) of the Companies Act, 1956 ("the Act"). 2. An inspection of the books of account and records of the company was ordered by the Department of Company Affairs by a letter dated 25-6-1998. An inspection was conducted by the Joint Director (Inspection) on 21-5-1999. It was noticed that the computation of the net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order dated 18-12-2004, the learned Additional Sessions Judge held that the revision petition was not maintainable in view of the judgment of the Supreme Court in Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674. 5. Mr. R.N. Mittal, learned senior counsel, appearing for the petitioners submits at the outset that the impugned order dated 18-12-2004, of the learned Additional Sessions Judge dismissing the revision petition of the petitioner challenging the summoning order on the ground of maintainability cannot be faulted in view of the decision of the Supreme Court in Adalat Prasad s case ( supra ). Nevertheless, he submits that by virtue of that very judgment, the only remedy available to the petitioner against the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, at the conclusion of the hearing an order was passed on 10-1-2008, in the presence of the proxy counsel for the Registrar of Companies permitting the parties to file their respective written submissions within one week. Till date the Registrar of Companies has not filed its written submissions either. 8. The petitioners are right in the contention that section 629A of the Act states that where no specific penalty is provided elsewhere in the Act, the maximum punishment is a fine of Rs. 5,000 and where the contravention is a continuing one, a further fine of Rs. 500 for every day during which the contravention continues is imposable. Section 349(4) which talks of the sums that are required to be deducted for determining net p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint was filed. Further, there is no explanation forthcoming for the delay in thereafter filing the complaint only on 20-3-2001. This cannot be said to be a reasonable explanation for the delay since the limitation would necessarily have to be computed from the date of the knowledge of the commission of offence. This is also not in the nature of a continuing offence. Apart from the fact that there is no such averment in the complaint, the type of contravention alleged does not admit of such description. The contravention alleged is of section 349(4) which requires a certain deduction to be made of a sum while computing profits for the purpose of managerial remuneration for a particular financial year at the time of finalising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has been brought to the knowledge of this court. This court finds that the language of section 349(4) which details the specific heads of deduction for arriving at the net profit clearly contemplates "depreciation" in sub-clause ( k ) as separate and distinct from an item of excess "expenditure" in sub-clause (1). If it was the legislative intent of Parliament to include unprovided depreciation of the previous years as one other head of deduction, then there is no reason why it would not have so provided or at least included it in sub-clause ( k ) itself. The intent, therefore, appears to be to not include unprovided depreciation of the previous years as a head of deduction and restrict the deduction to depreciation for the year in que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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