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TMI Blog2014 (11) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board of directors as compliance officer. In the absence of such specific allegations in the complaint, it cannot be said that the petitioner who is a director of the company is liable and can be prosecuted. Section 220(3) has to be established by means of facts in the complaint averments. In the absence of such averments in the complaint, in my opinion, such complaint is not maintainable. Learned counsel for the petitioner also brought to my notice that considering the various decisions of different courts bearing in mind, the Central Government framed certain guidelines. The Ministry of Corporate Affairs has issued a circular in No.3/57/2011/CL-11 dated 29.07.2011 addressing to all the Regional Directors, all the Registrars of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his particular petitioner is accustomed with that act or whether he is directed by the Board of directors and the said director is specified as the complying officer. In the absence of such materials in the complaint itself, in my opinion, the complaint is not maintainable, so far as this petitioner is concerned. Hence, the same is liable to be quashed. - Criminal Petition No. 5895/2010 - - - Dated:- 7-11-2014 - K. N. Phaneendra, J. For the Petitioner : K. S. Harish, Adv. P. M. Vasudev Co. For the Respondents : H. B. Somapur ORDER Petitioner, who is accused No.3 in C.C.No.684/2006 pending on the file of Spl.Court of Economic Offences, Bangalore, has sought for quashing of the said criminal case against him filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as follows:- 220. Three copies of balance sheet, etc., to be filed with Registrar- (1) After the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar within thirty days from the date on which the balance-sheet and the profit and loss account were so laid, or where the annual general meeting of a company for any year has not been held, there shall be filed with the Registrar within thirty days from the latest day on or before which that meeting should have been held in accordance with the provisions of this Act. (a) a copy of the balance-sheet and the profit and loss account, signed by the managing director, man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be filed with the Registrar. (3) If default is made in complying with the requirements of sub- sections (1) and (2), the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by section 162 for a default in complying with the provisions of sections 159, 160 or 161. This provision, particularly sub-section (3) of Section 220 which specifies that if the company makes any default in complying with the requirements of sub- sections (1) (2), the company and every officer, who is in default shall be liable to the punishment as is provided by Section 162. Section 162 says that, if the company fails to comply with any of the provisions contained in Sections 159, 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors; (c) the manager; (d) the secretary; (e) any person in accordance with whose directions or instructions the Board of directors of the company is accustomed to act; (f) any person charged by the Board with the responsibility of complying with that provision: Provided that the person so charged has given his consent in this behalf to the Board; (g) where any company does not have any of the officers specified in clauses (a) to (c), any director or directors who may be specified by the Board in this behalf or where no director is so specified, all the directors: Provided that where the Board exercises any power under clause (f) or clause (g), it shall, within thirty days of the exercise of such powers, file with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified that before taking penal action under the Companies Act, 1956 against the Directors, the following compliance should be verified by Registrar of Companies:- (b) In case the status of a director i.e., whether he is a nominee director or not, is not reflected in the Annual Return or other documents of the company, available with Registrar, the same should be cross checked with the Annual report filed by the company. Paragraph-6 sub-clause (c) says that, 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:- (c) Any persons amongst officers and employees other than Managing Director/Manager/Directors who has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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