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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 ..... s that the requisite notice as required under Rules 124 and 125 of the Companies (Court) Rules, 1959 had not been served on him. The learned Company Judge held that there was no provision of discharge, once criminal proceedings had been initiated and cognizance been taken. 2. The appeal was admitted for hearing and with the consent of the counsels for the parties heard finally. While reserving the judgment, without prejudice to the respective contentions of the parties, the appellant who was then present in the Court was directed to appear before the Official Liquidator on 09.05.2012 and Official Liquidator directed to serve notice on the appellant and to also record the statement of the appellant under Rule 30 of the Companies (Court) Rules, 1959. 3. As far as the ground on which the learned Company Judge has dismissed the application for discharge, without considering the same on merits, is concerned, we are prima facie unable to agree that there is no provision for discharge once prosecution under Section 454(5) has been initiated and cognizance taken. Such power of discharge / quashing vests in the High Court under Section 482 of the Code of Criminal Procedure, 1973 and we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage to set out the relevant provisions of Section 454 of the Act which are as under: "454. Statement of affairs to be made to Official Liquidator (1) Where the Tribunal has made a winding up order or appointed the Official Liquidator as provisional liquidator, unless the Tribunal in its discretion otherwise orders, there shall be made out and submitted to the Official Liquidator a statement as to the affairs of the company in the prescribed form, verified by an affidavit, and containing the following particulars, namely: - (a) to (e) ** ** ** (2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company, or by such of the persons hereinafter in this sub-section mentioned, as the Official Liquidator, subject to the direction of the Tribunal, may require to submit and verify the statement, that is to say, persons- (a) who are or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be in Form No.55 and shall be served by the Official Liquidator as soon as may be after the order for winding-up or the order appointing the Official Liquidator as Provisional Liquidator is made." 8. The Full Bench [in Official Liquidator, Security & Finance (P.) Ltd. (supra)] was constituted to consider the following question: "Whether in a prosecution under Section 454(5) of the Companies Act, 1956, the burden of proving that the accused had no reasonable excuse for making the default in respect of which he is being prosecuted lies upon the prosecution?" 9. The Full Bench in Official Liquidator, Security & Finance (P). Ltd. (supra) held that: (i) Rules 124 to 133 of the Companies (Court) Rules, 1959 lay down the procedure and the manner in which notice to the persons to submit the Statement of Affairs and for application to be moved by the Official Liquidator to the Court for an order directing any person to furnish a Statement of Affairs and the manner of preparation of Statement of Affairs and the form of Statement of Affairs; (ii) That a mere making of default in complying with any of the requirements of Section 454 does not constitute an offence inasmuch as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Official Liquidator, Security & Finance (P.) Ltd. (supra). 11. Under Section 454(2) of the Act, the duty to submit the Statement of Affairs is cast on two categories of persons. The first category consists of only those persons who are officers of the company as specified in the said Sub-section "at the relevant date" which is defined in Sub-section (8) of Section 454 as meaning "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". The officers specified are the Directors of the company and the Manager, Secretary or other Chief Officer of the company. The second category of persons are those specified in Clauses (a) to (d) of the said Sub-section (2) in respect of whom "the Official Liquidator, subject to the direction of the Court, may require to submit and verify the statement". Clause (a) of Sub-section (2) might give rise to some confusion because it includes within its ambit persons "who are or have been officers of the company" thereby including not merely those who 'have been' the officers of the company but also those who 'are' officers of the company i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of this Court in Devindar Kishore Mehra v. Official Liquidator [1980] 50 Comp. Cas 699 (Delhi) also held that Section 454(2) speaks of two categories of persons, though the facts of that case were not concerned with the issuance of notice. However, we find High Court of Andhra Pradesh in Global Drugs (P.) Ltd. (In Liquidation) v. M. Venkatanarayana [2008] 141 Comp. Cas. 935/84 SCL 120 (AP) and in Official Liquidator v. Koganti Krishna Kumar [1997] 89 Comp Cas 672 (AP), a Division Bench of the High Court of Kerala in Poomuli Manakkal Anujan Nambudiripad v. Official Liquidator [1979] 49 Comp. Cas 81 (Ker.) as well as a Single Judge of this Court in Sipso Agencies (P.) Ltd. v. Gajraj Singh [1978] 48 Comp. Cas. 30 (Delhi), to have taken the same view and held that for the first category of persons aforesaid, the time for filing the Statement of Affairs runs from the date mentioned in Section 454(8) and is not dependent on the service of the notice. 17. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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