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TMI Blog2008 (1) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... that view of the matter, Criminal Complaint No. 17 of 2004 and the order dated January 14, 2004, passed by the learned ACMM summoning the petitioners is hereby quashed and set aside. - CRL. M.C. NO. 2145 OF 2006 - - - Dated:- 30-1-2008 - DR. S. MURALIDHAR, J. Anil K. Batra and Keshari K. Tiwari for the Petitioner. Sanjay Mann for the Respondent. JUDGMENT 1. This is a petition under section 482 of the Code of Criminal Procedure, 1973 ("CrPC") seeking the quashing of Criminal Complaint No. 17 of 2004 pending before the learned Additional Sessions Judge, Delhi ("ASJ"). 2. The respondent Securities and Exchange Board of India (SEBI) a statutory body incorporated under the Securities and Exchange Board of India Act, 1992 (" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it from the investors." 3. As regards the specific role of the persons who are stated to be its directors, the allegations in the complaint read as under : "Accused Nos. 2 to 9 are the directors of accused No. 1 and as such persons in charge of and responsible to accused No. 1 for the conduct of its business and are liable for the violation of accused No. 1 as provided under section 27 of the Securities and Exchange Board of India Act, 1992." 4. Learned counsel for the petitioner submits that petitioner No. 2 resigned as a director on October 1, 1997 and petitioner No. 1 resigned as a director on August 19, 1999. Therefore much prior to the filing of the complaint on January 14, 2004 and much before the end of December 2000, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submitted that even if the petitioners had resigned and Form No. 32 was filed with the Registrar of Companies, such defence could be examined only at the trial and cannot constitute a ground for quashing the criminal complaint itself. He placed reliance on the judgment of this court in Sunaina R. Mathani v. National Capital Territory of Delhi [2002] 1 AD 78 and an order dated February 16, 2006, passed by a learned single judge of this court in Criminal Misc (M). No. 4141 of 2005. Reliance has also been placed on the order of the hon'ble Supreme Court in Raj Lakshmi Mills v. Shakti Bhakoo [2002] 8 SCC 236. 6. In order to appreciate the submissions of counsel, a reference may first be made to section 27 of the SEBI Act which reads as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be guilty of the offence. This presumption of guilt, however, can be rebutted by such person if he can prove that it was committed without his knowledge. However, this stage arises only after the complainant has discharged the initial burden. Where the offence has been committed by a company, in order to invoke the deeming provision of section 27(1) of the SEBI Act it will have to be shown by the complainant that the person who is arraigned in his capacity as a director of such company was in charge of the affairs of the company and responsible to it for the conduct of its business "at the time of commission of the offence". The averment in the complaint concerning the time of commission of the offence is therefore crucial for determining e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicated question of fact. Even an inspection of the records in the office of the Registrar of Companies can confirm whether in fact such Form No. 32 has been filed or not. It is not possible to accept the submission that this question can be examined only by the trial court when it can easily be verified by a mere inspection of the record of the Registrar of Companies. It would indeed be unfair to require the petitioners to go through the ordeal of a trial only for proving a statutory document available for inspection by the SEBI in the office of the Registrar of Companies. Although in Sunaina R. Mathani [2002] 1 AD 78, this court had opined that the question whether there was a Form No. 32 should also be examined by the trial court, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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