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TMI Blog1961 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 179 of the Indian Companies Act, 1913, was made by Bachawat, J., on 15th January, 1951 authorising the Official Liquidator to institute or defend any suit or prosecution or other legal proceeding civil or criminal in the name and on behalf of the Company. Thereafter upon an application of the said Official Liquidator praying for directions S.N. Banerjee, J., passed an order under Section 237 (1) of the Indian Companies Act, 1913 on 22nd July, 1952. After that order was made a petition of complaint was filed On 23rd July, 1952, in the court of the learned Chief Presidency Magistrate, Calcutta by one Jasada Dulal Adhikari, an assistant incharge under the Official Liquidator and that petition of complaint stated that it was filed for and on, behalf of the Official Liquidator and an authority signed by the Official Liquidator was attached to the petition of complaint as Schedule A thereto. By that petition of complaint it was grayed that processes may be issued against the two accused persons named therein (1) Dr. Sailendra Nath Sinha (2) Sudhendu Prosad Roy Choudhury for alleged offences under Sections 120B, 406, 467 and 477A Indian Penal Code and also Section 282-A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Companies Act (Act X of 1949) is limited in its application only to winding up proceedings of prosecution on criminal charges, (sic) (2) That Section 45F applies on its own terms in proceedings By or against the banking company . Mr. Banerjee contends that the criminal case now pending before the learned Presidency Magistrate is not a proceeding by the banking company. (3) Even if Section 45F applies that makes the books of account and other documents admissible in evidence, and, according to Mr. Banerjee, proof according to the provisions of the Evidence Act is necessary before the contents of those books of account and documents can be accepted in evidence. 4. During his arguments, however, Mr. Banerjee abandoned the point No. 3 based on his contention that Section 45F does not prescribe the mode of proof, in view of the language employed in that section but added a new point based on the history of incorporating the present Section 45F in the Banking Companies Act (Act X of 1949) and contends that Section 45F in its present form for the first time was brought into force on 30th December, 1953 long after the cognizance in the present case was taken on 23rd July, 1952 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the thing, and I think upon authorities also, those are retrospective, whether civil or criminal. That by the law in India, in the absence of any special circumstance of indication in the Act itself, procedural legislation applies to all past transactions is well-settled by a series of decisions of this country including some of the decisions of the Judicial Committee of the Privy Council, and recently upon a review of authorities that has been emphasised by a decision, of a Division Bench of this Court in the case of Anadi Kumar Chatterjee v. State reported in 59 Cal WN 306 in which the judgment was delivered by my Lord K.C. Das Gupta J. as his Lordship then was. The relevant passage occurs at p. 308 of the report and reads : the settled law is that legislation as regards procedure is ordinarily retrospective. As Lord Manton observed in (1878) 3 AC 582. 'It is perfectly well settled that if the Legislature forms a new procedure that, instead of proceeding in this form or that, you should proceed in another and a different way clearly then bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough the proceeding commenced before that section in its present form was embodied in the Act. Mr. Banerjee's contention to the contrary is accordingly overruled. 8. Now it is necessary to deal with the other points raised by Mr. Banerjee. The first of those contentions was that Section 45F is limited in its application only to winding up proceedings and has no application in criminal cases. The section is in these terms : 45F. Documents of banking company to be evidence. (1) Entries in the books of account or other documents of a banking company which is being wound up shall be admitted in evidence in all proceedings by or against the banking company; and all such entries may be proved either by the production of the books of account or other documents of the banking company containing such entries or by the production of a copy of the entries, certified by the official liquidator under his signature and stating that it is a true copy of the original entries and that such original entries are contained in the hooks of account or other documents of the banking company in his possession. (2) Notwithstanding anything to the contrary contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of the Indian Companies Act, 1913. 10. Next contention of Mr. Banerjee was that even if it is a winding up proceeding it is not a proceeding by or against the banking company. I have already said that this prosecution was commenced upon an order under Section 237 of the Indian Companies Act, 1913 and the complaint was filed for and on behalf of the Official Liquidator under his authority by a senior assistant in his office. The question is whether the proceeding is by the company. The learned Standing Counsel has contended that every act of the Liquidator is act of the company and has referred to a Full Bench decision of the Allahabad High Court reported in, Shiam Lal J. Dewan v Official Liquidators of the U. P. Oil Mills Co. Ltd . in delivering the judgment in that Full Bench case Sulaiman C. J. Observed : It is also obvious that as no property vests in the official liquidator, he has no personal right to move in the matter. His power to sue in the name and on behalf of the Company is conferred upon him by Section 179 of the Act. It therefore follows that whatever suit he files or whatever legal proceedings, civil or criminal, he takes, he must take it in the name and o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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