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TMI Blog2010 (4) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... icient to hold the respondents guilty under section 454 of the Act. In the circumstances stated above, these respondents cannot be held guilty under section 454 of the Act and accordingly they have to be acquitted. Hence the application is liable to be dismissed. - COMPANY APPLICATION NO. 902 OF 2002 AND COMPANY PETITION NO. 130 OF 1999 - - - Dated:- 15-4-2010 - SUBHASH B. ADI, J. V. Jayaram and K.S. Mahadevan for the Applicant. Akkamahadevi Hiremath and S.K.M. Shetty for the Respondent. JUDGMENT 1. This company application is filed by the official liquidator under section 454(5) and (5A) of the Companies Act, 1956, read with rule 132 of the Companies (Court) Rules, 1959 ("the Act and Rules"), inter alia, for taking cognizance of the offence committed by the accused in not complying with the requirement of provision of section 454 of the Act and to try them for the aforesaid offence, in accordance with the procedure laid down in the Code of Criminal Procedure, 1908 and punish them accordingly. 2. The case of the official liquidator is that the M/s. Canbay Polyfilms Ltd., was ordered to be wound up by order dated 17-4-2002, in a Company Petition N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding up of the company, the official liquidator was appointed, however, the respondents did not file the statement of affairs of the company in prescribed from along with the affidavits verifying the statements within the stipulated time. Under clauses ( a ) to ( e ) of sub-section (1) of section 454 of the Act they were required to file the statement of affairs of the company in time, however, no statement of affairs was filed by any of the director within twenty-one days from the relevant date and even thereafter also and as such the respondents being the directors have committed an offence punishable under section 454(5) of the Act. 8. In this regard, he has relied on the documents, such as the annual report of the year 1994-95, which is produced at exhibit P1 and Form No. 32 issued by the Registrar of Companies, as on 19-9-1991, produced at exhibit P2. A notice issued by the official liquidator to the directors calling upon them to submit the statement of affairs as per exhibit P3 and the acknowledgements, exhibits P4, P5, P6, P7 and P8. Exhibit P9 is the communication from counsel for respondent Nos. 4 and 5 along with the statement of affairs filed on 14-7-2003, with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conduct and also from the evidence and material produced by the official liquidator and submitted that the action been taken in accordance with the provisions of section 454 of the Act. 10. Learned counsel appearing for respondent Nos. 4 and 5 vehemently submitted that, the winding up of the company is ordered by this court on 17-4-2002, whereas the annual report relied upon by the official liquidator pertains to the year 1994-95, which is produced at exhibit P1. He further relied on exhibit P2 and pointed out that the list of directors as shown in 19-9-1991, is taken for the purpose of prosecuting these directors under section 454 of the Act. He also relied on the cross examination of PW 1 and pointed out that after the statement of affairs was filed by respondent Nos. 4 and 5, which is admitted by the official liquidator in the cross examination, the official liquidator on his own hand filed a Company Application No. 1030 of 2007, inter alia, for deleting respondent Nos. 4 and 5 and thereafter, the said application was dismissed as not pressed. He relied on the said application and submitted that the official liquidator admittedly had found that there was some delay in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown reasonable cause to excuse, there is no reason for the official liquidator to file an application for action against them. 12. Learned counsel for respondent Nos. 1 and 2 relied on exhibit P15, letter addressed by respondent No. 2 along with the statement of affairs, inter alia, stating that there was delay in submitting the statement of affairs. It is the categorical case of respondent Nos. 1 and 2 that the records were seized by KSIIDC. In this regard, she also relied on the balance-sheet, of the year 1997-98 to point out that the KSIIDC was also one of the director on account of loan advanced by it and all the records of the company were seized, as the KSIIDC had taken steps for recovery of loan and in this regard the records and the assets were seized. Learned counsel for respondent No. 2 has relied on exhibit P15, statement of affairs and submitted that in the statement of affairs filed as per exhibit P15, the name of the first respondent is not shown as the director of the company, and on the date of winding up of the company, respondent No. 1 was not the director. She also submitted that since admittedly the company premises was seized by the KSIIDC and all the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured and unsecured debts; and in the case of secured debts, particulars of the securities given, whether by the company or an officer thereof, their value and the dates on which they were given; ( d )the debts due to the company and the names, residences and occupations of the persons from whom they are due and the amount likely to be realised on account thereof; ( e )such further or other information as may be prescribed, or as the official liquidator may require. (2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company, or by such of the persons hereinafter in this sub-section mentioned, as the official liquidator, subject to the direction of the Tribunal, may require to submit and verify the statement, that is to say, persons : ( a )who are or have been officers of the company; ( b )who have taken part in the formation of the company at any time within one year before the relevant date; ( c )who are in the employment of the company, or have been in the employment of the company within the said y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, and in a case where no such appointment is made, the date of the winding up order." 14. By reading the above provision of section 454 of the Act, it makes clear that on winding up of a company, the directors of the said company were required to file the statement of affairs of the company wound up, along with the affidavit. It is necessary to notice that the proceedings under section 454 are criminal in nature. The procedure prescribed is the summary trial under the provisions of the Code of Criminal Procedure. Section 454(5A) stipulates that the court by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself is in accordance with the procedure laid down in the Code of Criminal Procedure, 1973, for the trial of summons cases by Magistrates. 15. The procedure followed in trying the summons case is stated in Chapter 20 of the Code of Criminal Procedure. Chapter 20 of the Code of Criminal Procedure, which requires accusation and conviction if the accused plead guilty. As otherwise under section 254 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by one or mere persons, who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company. The relevant date, though not defined, but is explained in section 454(8) of the Act, the relevant date means, in a case where a provisional liquidator is appointed, the date of his appointment, and in a case where no such appointment is made, the date of winding up order. If that is the relevant date for the purpose of requiring the persons to submit the report, PW1 for the purpose of prosecuting the respondents relied on exhibit P1. Exhibit P1 admittedly is annual report of the year 1994-95. It is not in dispute that the relevant date as stated in section 454(5A) is the date of winding up of the company, i.e., on 17-4-2002. It is not explained as to why the official liquidator has relied on annual report of the year 1994-95. Further, for the purpose of knowing who were the directors, the annual report of 1991 is relied and which discloses that there are eight directors. However, only four directors out of them have been chosen in this case. 18. Apart from this, in respect of respondent Nos. 4 and 5, an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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