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TMI Blog2011 (4) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... ight be brought against him in respect of any negligence, default, breach of duty, misfeasance or breach of trust, he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a Court, before which a proceeding against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub-section (1)." 2. This Act, elsewhere provides for numerous acts and duties to be done by the company and its officers and registers, returns, statements of accounts, other records and documents to be maintained by them. Breach of any obligation is visited by punishment. 3. When such prosecution is apprehended, any offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament has enacted a provision which is part of section 633(2) and which is in the following terms : "633(2) . . . the High Court on such application shall have the same power to relieve him as it would have had if it had been a Court, before which a proceeding against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub-section (1)." 7. It says that the High Court will have the same power to relieve an alleged offender as the Criminal Court has under section 633(1). 8. Now, the criminal court proceeds on such complaint as if it is a criminal complaint. Therefore, as in other criminal proceedings, on receipt of a complaint a Criminal court is to examine whether it should take cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Ltd. v. Regional Director, Department of Co. [2007] 138 Comp. Cas. 106 (Cal.), see also Chandra Kumar Dhanuka v. Registrar of Companies [2008] 141 Comp. Cas. 101 (Cal.)] 12. An important, if not the most important point of defence in favour of the petitioners is the point of limitation. 13. Our Division Bench in the case of 1. Bhagwati Foods (P.) Ltd. v. Registrar of Companies [2008] 143 Comp. Cas. 531 (Cal.), noted that time bar is one of the circumstances which the Court can take into account for the purpose of exoneration of the accused. The Division Bench pronounced as follows : "Moreover, for grant of relief under section 633(2), the court is to take into account, the entire circumstances of the case. In the instant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment Corporation v. Registrar of Companies, West Bengal and Stock Holding Corporation of India Limited. (sic) 15. It is as follows : "However, the matter is concluded in favour of the applicants beyond question by reasons of section 468(2)(a) of the Code of Criminal Procedure which prescribes for a period of limitation of 6 months from the date of offence. Even assuming that the applicants had committee (sic) default in compliance with the provisions of section 113(2) of the said Act, the last of such default was committed in April, 1991. Not only were no criminal proceedings initiated within the period of 6 months, but even the show-cause notice has been issued to the applicants beyond that period. For the reasons aforesaid, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation is one year and for the fourth it is six months. 19. Similarly, the alleged offences in the second and third show-cause notice are barred by limitation as they relate to the same period, more or less. The alleged offence in the fourth show-cause notice is till 31-12-2007 and also hopelessly barred. 20. Now, let me deal with the nature of offences. 21. In the first show-cause notice, the objection was with regard to some accounting principles in preparing the profit and loss account for the accounting years ending on 31-3-2007, 31-3-2008, 31-3-2009. Such objection was raised by the respondent by an earlier notice dated 8-10-2009 which was replied to by the company on 27-10-2009 stating that they had complied with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorship was registered in the register maintained under section 303(1) of the Act. 23. The relevant sections provide that if any of the directors and other officers of the company fail to take reasonable steps to secure compliance of the requirements of the Act they will be punished with imprisonment for up to six months. Such is provided in section 211(7). Similar is the language of section 217(5). But, in this section the obligation is only of the director. On my examination of the complaint of the department it relates to the way profit and loss account was prepared, the information to be contained therein, the way the information has to be projected, the contents of the notes to the accounts and so on. One complaint was regarding no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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