9911796707
TMI Blog2012 (12) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... ned for atleast seven times before different Courts after service of notice upon the respondents, being State of Gujarat and Registrar of Companies, who were represented through their advocates. 3. The brief facts of the petitioner are as under; 3.1 The petitioner being a Chartered Accountant was appointed as Professional Non- Executive Director of Nisu Fincap Ltd., which was formerly known as Medha Finance Securities Ltd. on 6.7.1995. The company had issued prospectus for public issue on 5.1.1996. 3.2 The petitioner had resigned as Director from the company on 1.4.1997. It is the case of the petitioner that he has never participated as a Director of the company and never attended any board meeting or general meeting of the company and did not receive any sitting fee or any kind of remuneration either directly or indirectly in any kind from the company during his tenure as a Director of the company, which came to an end on 1.4.1997. However, he received a show-cause notice dated 29.3.2002 from the respondent No.2 regarding violation of Sections 63, 68 and 628 of the Companies Act, 1956 by the company, which was replied in detail by him on 3.6.2002. Inspite of specific re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the year for which there is a breach, if at all it is committed by the company or its Director. However, it is first time disclosed in the complaint before the Navrangpura Police Station on 28.8.2003 that company has not filed accounts from the year 1999 2000. Therefore, it is submitted by Mrs.Pahwa, learned advocate for the petitioner that the allegation regarding commission of offences u/ss.63, 68 and 628 of the Companies Act is not certain and when allegations under the IPC are specifically for the year 1999 2000 and thereafter, considering the fact that petitioner has already resigned as Director of the company from 1.4.1997, he cannot be held liable or responsible neither for any activity of the company nor for the commission of offence, if at all any committed by such company from the year 1999 and thereafter. 7. As against that it is submitted by Mr.N.D.Gohil, learned advocate for the respondent No.2 that since prospectus were published in 1996 and that public issue was floated after such prospectus and company has collected huge amount based upon such prospectus before the resignation of the present petitioner, he cannot escape from his responsibility and liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 and when the petitioner has resigned from the company in the year 1997, then he cannot be held responsible and liable either for the offences or for the irregularities if at all it was committed by the company or its remaining Directors from the year 1999 onwards. It is also clear from the record that while filing the complaint in the year 2002 before the Metropolitan Magistrate Court being Criminal Case No.136 of 2002 for the alleged offences under the Companies Act, the respondent No.2 Authority has clearly disclosed the name and addresses of the Directors of the company and, therefore, it is surprising to note that while filing a complaint before the Navrangpura Police Station, within less than a year i.e. on 28.8.2003, it is vaguely stated against the column of accused that Promoters/Directors, who had signed prospectus of Nisu Fincap Ltd. It is also to be noted that when respondent No.2 Authority possesses all the record with it regarding all the Promoters/Directors and all other details of the company in their office, the reason for not disclosing the name of persons as accused before the police authority gives an impression that respondent wants to give freedom to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and more particularly when the complainant is one and common and once they have filed a complaint under the Companies Act before the competent Court, if the complainant is of the opinion that similar set of allegations also constitute other offences under any other enactments, then also, they are free to furnish such information to the same Court, to consider the further proceedings with such additional information, but law does not permit to file separate complaint raising identical allegations in the complaint. 12. The petitioner also relies upon the case of Sagar Suri and Anr.Vs.State of U.P. Ors. reported in 2000 SCC (Cri.) 513, which is repeatedly referred and followed by the Apex Court in several decisions (AIR 2010 SC 3363 Preeti Gupta Vs.State of Jharkhand, AIR 2011 SC 2552 Bhajan Singh Vs.State of Haryana and AIR 2010 SC (Supp.) 347 Md.Ibrahim Vs.State of Bihar) and the outcome of such decisions can be summarised in following words. It is the duty and obligation of the criminal Court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil in nature. Prompt and early reporting of the occurrence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activities of the company after his resignation. So far as the allegations regarding cheating etc. are concerned, the Apex Court has specifically confirmed that primary requirement to make out an offence of cheating u/s.415 punishable u/s.420 of the IPC is dishonest/fraud intention at the time of inducement is made and, therefore, in the given case, the Apex Court has held that when appellant ceased to be a Director of the company from 27.12.1997 and when alleged offences, if any, were stated to be committed during the period from 24.5.1998 to 17.9.1999, it was held that the appellant before the Supreme Court cannot be held responsible for any activities of the company after he ceased to be a Director of the company. The Supreme Court has further considered that company had invited the investment from the depositors to invest in the business/benefit funds after receiving due approval of the scheme from the Reserve Bank of India and, therefore, in any event, the element of cheating as alleged cannot be made out and, therefore, it was held that appellant before the Supreme Court cannot be compelled to face the criminal prosecution. Thus, the Apex Court has set-aside the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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