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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 ..... M. Bhutoria and G.S. Asopa for the Petitioner. D.K. Mukherjee and Ms. A. Banerjee for the Respondent. ORDER 1. The provision of the Companies Act, 1956, which is under consideration in this application is section 633(2). It reads as follows : "633(2) Where any such officer has reason to apprehend that any proceeding will or might 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 officer may under section 633(2) apply to the High Court for exoneration. 4. In dealing with su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused. When a prima facie case has been established against him, the trial proceeds by framing of charges and so on. If the charge cannot be established at the trial the accused is acquitted. These are the elementary principles of our criminal procedure. 9. A very relevant consideration in initiating criminal proceedings is the law of limitation. Section 468 of the Code enacts that no court is to take cognizance of an offence after expiry of the period of limitation. The court takes such cognizance when, inter alia, a complaint petition is filed before it under section 190. Considering section 468, the Magistrate has the power under section 203 to dismiss the complaint on the ground of limitation. 10. Therefore, the powers of the Magistrate under section 633(1) to exonerate the accused in case he is of the opinion that the accused is likely to have committed the offence but there are grounds for his exoneration are in my judgment in addition to his powers to take cognizance and proceed with the trial and not an isolated power. 11. Therefore, the High Court is also invested with similar powers. First, to ascertain whether there is cause for proceeding with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrar 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 application is allowed. The interim order already granted is made absolute." 16. The first show-cause notice is dated 23-12-2009. The period during which the offence was allegedly committed was the financial years ending on 31-3-2007, 31-3-2008 and 31-3-2009. Now, the contravention alleged was of section 211(1) and (2) read with Parts I and II of Schedule VI of the Companies Act, 1956. The imprisonment for such an offence is six months. The period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosure of the names and other particulars of the employees in alleged violation of section 217(2A) for the financial years ending 31-3-2007, 2008 and 2009. This allegation was also raised in an earlier letter dated 8-10-2009 which was replied to by the company on 27-10-2009. The last show-cause notice is dated 27-12-2009, alleging violation of section 305(1) of the Act. The allegation was that the petitioner No. 3, Apurba Mukherjee, was appointed as director of one Bagryys India Limited on 31-12-2007. According to the petitioner the date should be 31-12-2005. The petitioner No. 3 did not disclose to the company his said appointment within twenty days thereof. This allegation was also made in an earlier letter dated 8-10-2009 which was replied by the company on 27-10-2009. The petitioners say that Mr. Mukherjee had declared his interest for the financial year 2006, and subsequent years. His directorship 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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