9911796707
TMI Blog2020 (10) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the offence under Companies Act is concerned. The procedure provided under the Companies Act does not excludes the application of Cr.P.C completely. Section 212(6) excludes the applicability of Cr.P.C only for the limited purpose for treating the offence under Section 447 cognizable. Section 438 of the Companies Act makes it clear Section 212(14) of the Companies Act provides that the central government has to provide whether prosecution should be launched against the companies and its officer or employees, who are or have been in employment in the company or any other person directly or indirectly connected with the affairs of the company. Therefore it appears that when the director of company is prosecuted the company should also be arrayed as an accused. Even if the argument of the learned counsel for the informant is accepted that the applicant was illegally inducted in the company as director by fabrication of resolution, even then the prosecution under Section aforesaid can be launched against the applicant under the provisions of Companies Act since Section 212 (4) Cr.P.C clearly provides prosecution of any other persons directly or indirectly connected with the affa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Directors lodged an FIR dated 20.09.2018 against the informant, being Case Crime No. 985 of 2018 and the informant was subsequently exonerated by the Investigating Officer. There are number of cases lodged against the applicant and other accused persons against each other in different police station. 3. Counsel for the applicant has submitted that applicant has been falsely implicated in this case on account of lodging of FIR dated 20.09.2018 against Kripa Shanker Rai, informant in the present case. He has further submitted that the informant managed to get a final report submitted in aforesaid case. The allegation that in the year 2016 Smt. Pratima Verma was ousted from the firm and the applicant was made Director is false. Smt. Pratima Verma resigned from the post of Director and after her resignation was duly accepted by Ravindra Kumar Maurya and due information was sent to the Registrar of Companies, Kanpur, the applicant was inducted as Director of the company. The informant has implicated the applicant and Ravindra Kumar Maurya in number of FIR's with the help of Shri Rajesh Prasad Singh, Advocate details whereof have been given in paragraph 8 of the affidavit. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013, which are reproduced hereinbelow:- SECTION 210: Investigation into affairs of company.- (1) Where the Central Government is of the opinion, that it is necessary to investigate into the affairs of a company,-- (a) on the receipt of a report of the Registrar or inspector under section 208; (b) on intimation of a special resolution passed by a company that the affairs of the company ought to be investigated; or (c ) in public interest, it may order an investigation into the affairs of the company. (2) Where an order is passed by a court or the Tribunal in any proceedings before it that the affairs of a company ought to be investigated, the Central Government shall order an investigation into the affairs of that company. (3) For the purposes of this section, the Central Government may appoint one or more persons as inspectors to investigate into the affairs of the company and to report thereon in such manner as the Central Government may direct." Section 212: Investigation into affairs of Company by Serious Fraud Investigation Office.-(1) Without prejudice to the provisions of Section 210, where the Central Government is of the opinion, that it is necessary to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs : Provided further that the Special Court shall not take cognizance of any offence referred to this sub-section except upon a complaint in writing made by -- (i) the Director, Serious Fraud Investigation Office; or (ii) any officer of the Central Government authorised, by a general or special order in writing in this behalf by that Government. (7) The limitation on granting of bail specified in sub-section (6) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (8) If the Director, Additional Director or Assistant Director of Serious Fraud Investigation Office authorised in this behalf by the Central Government by general or special order, has on the basis of materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in this Act, any investigation or other action taken or initiated by Serious Fraud Investigation Office under the provisions of the Companies Act, 1956 shall continue to be proceeded with under that Act as if this Act had not been passed. (17). (a) In case Serious Fraud Investigation Office has been investigating any offence under this Act, any other investigating agency, State Government, police authority, income-tax authorities having any information or documents in respect of such offence shall provide all such information or documents available with it to the Serious Fraud Investigation Office; (b) The Serious Fraud Investigation Office shall share any information or documents available with it, with any investigating agency, State Government, police authority or income tax authorities, which may be relevant or useful for such investigating agency, State Government, police authority or income-tax authorities in respect of any offence or matter being investigated or examined by it under any other law." Section 217: Procedure, powers etc., of inspectors.- (1) It shall be the duty of all officers and other employees and agents including the former officers, empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:-- (a) the discovery and production of books of account and other documents, at such place and time as may be specified by such person; (b) summoning and enforcing the attendance of persons and examining them on oath; and ( c ) inspection of any books, registers and other documents of the company at any place. 6. (i) If any director or officer of the company disobeys the direction issued by the Registrar or the inspector under this section, the director or the officer shall be punishable with imprisonment which may extend to one year and with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees. (ii) If a director or an officer of the company has been convicted of an offence under this section, the director or the officer shall, on and from the date on which he is so convicted, be deemed to have vacated his office as such and on such vacation of office, shall be disqualified from holding an office in any company. (7) The notes of any examination under sub-section (4) sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person, supposed to be acquainted with the facts and circumstances of the case, to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing, which may be in his possession pertaining to the case, and to forward all the evidence so taken or collected or the authenticated copies thereof or the things so collected to the court in India which had issued such letter of request: Provided that the letter of request shall be transmitted in such manner as the Central Government may specify in this behalf: Provided further that every statement recorded or document or thing received under this sub-section shall be deemed to be the evidence collected during the course of investigation. (12) Upon receipt of a letter of request from a court or an authority in a country or place outside India, competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to affairs of a company under investigation in that country or place, the Central Government may, if it thinks fit, forward such letter of request to the court concerned, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inspection, inquiry or investigation, or an officer or other employee of a company or other body corporate which is also under investigation, (a) destroys, mutilates or falsifies, or conceals or tampers or unauthorisedly removes, or is a party to the destruction, mutilation or falsification or concealment or tampering or unauthorised removal of, documents relating to the property, assets or affairs of the company or the body corporate; (b) makes, or is a party to the making of, a false entry in any document concerning the company or body corporate; or (c) provides an explanation which is false or which he knows to be false, he shall be punishable for fraud in the manner as provided in section 447." SECTION 436: OFFENCES TRIABLE BY SPECIAL COURTS: - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) all offences specified under sub-section (1) of section 435 shall be triable only by the Special Court established for the area in which the registered office of the company in relation to which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter recall any witnesses who may have been examined and proceed to hear or rehear the case in accordance with the procedure for the regular trial." Section 438: Application of Code to proceedings before Special Court.- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure 1973 (2 of 1974), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor." Section 446-A: Factors for determining level of punishment: The Court or the Special Court while deciding the amount of fine or imprisonment under this Act, shall have due regard to the following factors, namely:- (a) Size of the company ; (b) nature of business carried on by the company ; (c ) injury to public interest ; (d) nature of the default ; and (e ) repetition of the default. Section 447: Punishment for fraud:- Without prejudice to any liability including repayment of any debt under this Act or any other law for the time being in force, any person who is found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company." Therefore it appears that when the director of company is prosecuted the company should also be arrayed as an accused. Even if the argument of the learned counsel for the informant is accepted that the applicant was illegally inducted in the company as director by fabrication of resolution, even then the prosecution under Section aforesaid can be launched against the applicant under the provisions of Companies Act since Section 212 (4) Cr.P.C clearly provides "prosecution of any other persons directly or indirectly connected with the affairs of the company". In the present case the entire investigation has been conducted by the Investigating Officer of the police and not by the Special Fraud Investigating Officer appointed under the Companies Act. First proviso to Section 212(6)(ii) provides that no person accused of any offence under Section 447 of the Companies Act shall be released on bail. The only exception is a person who is under age of 16 years or a woman or a sick or infirm person. The applicant in this case is a woman whose prayer for bail can also be considered under Section 437(1) Cr.P.C. In the present case there is no approval from the centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against her in accordance with law. 7. In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court her bail shall be effective after the period of short term bail comes to an end. 8. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The applicant will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored. 9. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 10. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
