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TMI Blog2010 (2) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... and responsible to the Company - N.R. Plantations (India) Limited, for conduct of its business and, therefore, he is not vicariously liable for the offence committed by the company. The petitioner claims that he only subscribed to the Memorandum and Articles of Association of the Company, which does not make him a person in charge of and responsible to the Company for conduct of its business. 2. In order to regulate entities, which used to issue instruments such as Agro Bonds, Plantation Bonds, etc., Government of India decided to treat such schemes as Collective Investment Schemes and brought them under the purview of SEBI Act, 1992, with the object of protecting the investors and promoting legitimate investment activities. Securities Exchange Board of India (Collective Investment Schemes) Regulations, 1999 were thereafter framed by SEBI. Vide its letter dated December 15, 1999/December 29, 1999 and also by way of a public notice, SEBI directed M/s. N.R. Plantations (India) Limited, which was operating Collective Investment Schemes and had raised a sum of Rs. 2,80,000 from the general public, to send an information memorandum to all the investors, detailing the state of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them had subscribed 100 shares each. The Articles of Association were also signed by the aforesaid eight persons, including the petitioner Vishnu Prakash Bajpai. 6. A perusal of copy of Form-32 presented to the Registrar of Companies on 27-3-1997 would show that three persons, namely, Naresh Kumar Mishra, Shyam Badan Singh and Ajay Kumar Pandey have been shown as Directors of the Company since its incorporation. The copies of Form-29 submitted by the aforesaid three persons also contains their consent to be a director of the company. 7. The statement in lieu of prospects delivered for registration by the Company gives the names of three persons Naresh Kumar Mishra, Shyam Badan Singh and Ajay Kumar Pandey as directors or proposed directors. 8. The respondents, on the other hand, have placed on record a letter dated 15-1-1998 written by N.R. Plantations (India) Limited. Para 3 of this letter contains the names of promoters/sponsors of the Company and names of seven persons, including the petitioner Vishnu Prakash Bajpai, have been given in para 3 of this letter. The bio-data of the petitioner has also been annexed to this letter. The respondent has also placed on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 12. While exercising jurisdiction under section 482 of the Code of Criminal Procedure, the High Court is not expected to appreciate and weigh the evidence sought to be produced by the complainant or to compare one set of evidence with the other set of evidence available before it. The appreciation of evidence being the function of the trial court and not of the High Court exercising jurisdiction under section 482 of the Code of Criminal Procedure, it would not be appropriate for this Court to say, at this stage in these proceedings, as to whether the evidence produced by the complainant should be preferred or the evidence produced by the petitioner is more reliable. For the purpose of proceedings under section 482 of Code of Criminal Procedure, the allegations made in the complaint have to be taken as correct and on their face value and if on consideration of the allegations it appears to the High Court that ingredients of the offence or offences alleged to have been committed by the petitioners are made out and there is no material to show that the prosecution is mala fide , frivolous or fictitious, it would not be appropriate for it to interfere with the prosecution, in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, they can be prosecuted only if they were in charge of and responsible for the conduct of the company s business. A combined reading of sections 5 and 291 of Companies Act, 1956 with the definitions in clauses ( 24 ), ( 26 ), ( 30 ), ( 31 ), ( 45 ) of section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company : ( a ) to ( d )****** ( e )any person in accordance with whose directions or instructions the Board of directors of the company is accustomed to act." (p. 153) Therefore, it is quite possible for the complainant/respondent to establish, during trial that being a promoter of the company, the petitioner was a person in accordance with whose directions the Board of Directors of N.R. Plantations (India) Limited was accustomed to act. If this is shown, the petitioner would a person in charge of and responsible to the Company for conduct of its business, even if he was not a Director of the Company. 15. It would be pertinent to note here that the petitioner has not filed copies of Form-32 for all the years starting the year in which the violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 filed by one Ram Chander Singh. A perusal of the judgment would show that the learned counsel, appearing for the SEBI, was unable to show any document other than Memorandum and Articles of Association of the Company for roping the petitioner in for the offence committed by the Company. In the present case, however, the respondent have placed on record the documents filed by the Company itself claiming that the petitioner was not only one of its promoters but was also one of its directors. Therefore, the question as to whether the petitioner was actually a director of the company at the relevant time or not needs to be adjudicated during trial and no view in this regard can be taken by this Court, while exercising jurisdiction under section 482 of the Code of Criminal Procedure. 18. Since I have taken a view that the factual issue involved in this case need adjudication after trial, I need not examine the contention of the respondent that the document relied upon by the petitioner being his defence, cannot be considered in these proceedings, as neither they are public documents nor admitted documents. 19. For the reasons given in the preceding paragraphs, the petition is, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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