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TMI Blog2012 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed and the accused discharged. cognizance of the alleged offence is barred by the laws of limitation - C.P. NO. 330 OF 2010 - - - Dated:- 3-8-2011 - I.P. MUKERJI, J. Ms. Manju Bhutoria for the Petitioner. Bhaskar Prasad Banerjee for the Respondent. JUDGMENT 1. This is another application under section 633(2) of the Companies Act, 1956 ("the Act"). It is made by three persons. The first is the Managing Director of the Company, Hindustan National Glass and Industries Ltd. The second is its Chairman. The third is the Joint Managing Director. They are the first, second and third petitioners respectively in this application. They seek an order from this Court relieving them from the alleged offence with which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. H.N.G. Float Glass Ltd. was loan and advance. Now according to them the Directors of the Company were holding 30 per cent of the paid up share capital of the other Company and for advancing money permission of the Central Government was required, which was not obtained. Therefore, there was violation of section 295(1)( d ) of the Act. In the letter dated 22-12-2008 other alleged violations by the Company were also alleged. 4. The Company by its letter dated 6-1-2009, the Company discussed the provision of, inter alia , section 295( d ) and ( e ) of the Act which are copied below: "295. Loans to directors, etc. (1) Save as otherwise provided in sub-section (2), no company (hereinafter in this section referred to as "the len ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director, Eastern Region dated 22-12-2008, on 6-1-2009, they did not reply to this show-cause notice. 7. The first ground, as I have said before is limitation. The alleged violation is of section 295 of the Act. The penalty for such violations, if proved is six months imprisonment or fine or both. Hence, under section 468 of the .Criminal Procedure Code the time limit for taking cognizance of the offence is one year from the date of its commission or knowledge by inter alia the person aggrieved by it. The period for which the violation had allegedly taken place ended 31-3-2008. 8. Now it is the usual case of the Registrar of Companies, that the date of knowledge is the date of the show-cause notice which is 14-7-2010. Hence limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the offence has become barred. Regarding the substantial charge against the petitioners, the Court has not made a factual enquiry as to whether the directors of the Company hold 4 per cent or more than 4 per cent of the shares in the Company M/s. H.N.G.; Float Glass Ltd. or whether the directors of the Company control the affairs of the other Company. Furthermore it is not possible for the Court to hold an enquiry as to whether the sum advanced by the Company to M/s. H.N.G. Float and Glass Ltd. was loan or application money for shares. But, our Division Bench in the case of Bhagwati Foods (P.) Ltd. v. Registrar of Companies [2008] 143 Comp. Cas. 531/ 88 SCL 56 (Cal.) has held that if cognizance of alleged offence is barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning words of sub-section (2) was genuine, the High Court, willy-nilly becomes the criminal court in which the complaint against the petitioner may have been brought. The jurisdiction of the High Court in such a case is not limited to pardon the defaulter upon default being admitted or being found. The High Court in such a case may acquit or exonerate the petitioner upon arriving at a conclusion that there was no offence committed. In this case, I find that there was no false or misleading statement contained in the sentence, which has been made the subject-matter of the notice relating to the violation under section 628 of the Act." 15. I have followed that judgment in Bithal D. Mundra (supra) and Srikumar Menon's case ( supra ). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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