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TMI BlogMaster Circular on Prosecution of Directors – Regarding.X X X X Extracts X X X X X X X X Extracts X X X X ..... again. The Department has issued various circulars in this regard so far. It may be recollected that the Department vide circular No.42/7/73-CL.II dated 20.9.1973 had clarified that a person appointed as a nominee director, whatever interest he represents or protects is responsible for the proper discharge of his obligations and fiduciary responsibilities under the statute in the similar manner as an ordinary directors. However, in the same circular, it was further clarified that nominees of institutions set up under Acts having non-obstante clauses can enjoy immunity from prosecutions. 2. In Departmental circular No.6/98 dated 12.11.1998, it was clarified that where penal provisions provide for punishment of officers in default , p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment. (c) Various Public Sector Financial Institutions, Financial Institutions and Banks having participation in equity of a Company also nominate Directors to the Board of such companies. (d) Directors nominated by the Government u/s 408 of the Companies Act, 1956 . In super session of all earlier circulars, it is clarified that Registrar of Companies should take extra care in examining the cases where above Directors are also identified as Officer in default. No such Director as indicated above shall be held liable for any act of omission or commission by the company or by any officer of the company which constitute a breach or violation of any provision of the Companies Act, 1956 , and which occurred without his knowledge att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked in case any person has been charged by the Board under Section 5(f) with the responsibility of complying with some particular provision or in case any director has been specified by the Board under Section 5(g) of the Act. (d) Special Directors appointed by BIFR under section 16 (6)(b) of SICA 1985, shall not incur any obligation or liability for anything done or omitted to be done in good faith and in discharge of duties. Hence they shall be excluded in the list of officers in default 6. For default u/s 209(5), 209(6), 211 and 212 of the Act, the following persons shall be the officers in default for the purpose of prosecution under these provisions:- (a) Where there is a Managing Director or Manager, the Managing Director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be proper application of mind on the part of Registrar of Companies in deciding whether a person to be implicated is an officer in default by examining the Annual Return, Form 32(s) and DIN-3 database available in the Registry. The guidelines issued herein above should be applied and wrongful prosecution should be avoided. Wherever the Registrar of Companies has doubt as to whether director/officer can be held liable after applying the above parameters, they should refer to Regional Director, who shall guide Registrar of Companies in the matter. 8. All the Regional Directors are required to ensure that such cases are reviewed, based on these parameters and a report must be sent by each Regional Director with specific recommendat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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