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TMI Blog2012 (10) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (3). The complaint under Section 454(5) against the appellant has been filed in his capacity as a Director of the company in liquidation at the relevant time i.e. falling in the first category of persons aforesaid and thus the obligation of the appellant to submit the Statement of Affairs was not dependent on the service of any notice. That being the position, the argument of the senior counsel for the appellant that no notice was served on the appellant is of no avail The persons under Section 454 of the Act who are required to submit the Statement of Affairs cannot create circumstances where neither can notice be served on them nor do they file Statement of Affairs. The appellant has all defences open to him in the prosecution and no case for discharging the appellant as sought is made out - no merit in this appeal, the same is dismissed. We refrain from imposing any costs. - Co. Appeal No. 44 of 2012 - - - Dated:- 13-7-2012 - Rajiv Sahai Endlaw, J. Rajive Sawhney and Vineet Jhanji for the Appellant. Rajiv Behl for the Respondent. JUDGMENT Rajiv Sahai Endlaw, J. - This appeal, under Section 483 of the Companies Act, 1956 read with Rule 9 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashing having been made out in facts of this case, we hesitate from giving any final opinion on this aspect. Moreover, the question as to whether the appellant had ceased to be a Director or not is not such which can be adjudicated under Section 482 Cr.P.C. and suffice it is to state that though the appellant claims to have left the country but no copy of the passport has been placed before us and even otherwise there is no document to prove the same and that is a matter of evidence. The learned senior counsel fairly agrees that the question, whether the appellant had ceased to be a Director or not, cannot be gone into at this stage and is to be decided in the prosecution, if to continue. 4. The only ground urged by the senior counsel for the appellant before us is that no case / charge of violation / breach of Section 454 of the Act can be made without service of a notice under Rule 124 of the Companies (Court) Rules, 1959 and which has not been served on the appellant. From the complaint under Section 454(5) of the Act, it is shown that it is the admitted position that the notices though issued to the appellant, were received back undelivered. Relying on the Full Bench dicta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded time not exceeding three months from that date as the Official Liquidator or the Tribunal may, for special reasons, appoint. (4) ** ** ** (5) If any person, without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees for every day during which the default continues, or with both. (5A) The Tribunal by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898), for the trial of summons cases by magistrates. (6) and (7) ** ** ** (8) In this section, the expression "the relevant date" means, in a case where a provisional liquidator is appointed, the date of his appointment, and in a case where no such appointment is made, the date of the winding up order." 7. Rule 124 of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable excuse, made a default is on the complainant i.e. the Official Liquidator in the first instance. 10. Though undoubtedly there are observations as aforesaid in the judgment aforesaid of the Full Bench, of a notice being required to be sent but as would be obvious, the question which was referred for decision of the Full Bench was not concerning the requirement of service of notice but was of onus. Neither any arguments were addressed before the Full Bench nor has the Full Bench considered any contentions as to whether the notice at all is required to be issued or not. It is a settled principle of law that a judgment is a precedent for what was for decision before the Court and not on other matters. This would apply more to a case where the Larger Bench is answering a reference framed for its decision. The focus in such opinion on reference is on the legal question framed and if while answering the said legal question any other observations are made on matters which were not for decision, the same do not constitute a precedent. The Supreme Court recently in State of Orissa v. Mohd. Illiyas [2006] 1 SCC 275 reiterated that a decision is an authority for what it actually and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Liquidator issues notice requiring them to submit and verify the statement. 14. Again though Rule 124 undoubtedly talks of persons mentioned in Sub-section (2) of Section 454 and which would include both categories aforesaid but the reference therein necessarily has to be only to such persons, for whom to file the Statement of Affairs, a direction is necessary and cannot be to persons who are automatically mandated by the position held by them in the company at the relevant time to file the Statement of Affairs. When the Act has not made the filing of the Statement of Affairs by the Directors, Managers, Secretary and Chief Officer at the relevant time, subject to a direction of the Official Liquidator, the Rule cannot be read as limiting the scope and width of the main provision. 15. Unless we read the Act and the Rules in the manner aforesaid, it will also lead to inconsistency. Section 454(3) of the Act requires the Statement of Affairs to be submitted within 21 days of the relevant date. The relevant date is defined in Section 454(8) as the date of appointment of provisional liquidator or the date of winding up order. However Rule 124 provides for the notice to be in For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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