9911796707
TMI Blog2022 (12) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ot under Section 447 of the Act; that twin-stringent conditions stipulated under Section 212(6) of the Companies Act, 2013 would apply to Section 447 of the said Act, of which the petitioner is neither accused nor charged with and that the only offence alleged against the petitioner being Section 448 of the Companies Act, 2013, the petitioner is entitled to the grant of concession of bail. It is further submitted that the petitioner is accused of having signed the Financial Statements for the year 2010-11; 2011-12; 2013-14 and 2014-15 and that as the amendment in the Companies Act, came into force in the year 2013, therefore, the petitioner cannot be made liable for the alleged signing of the Financial Statements for the years 2010-11 and 2011-12. It is further argued that so far as the said balance sheets are concerned, the offence falls under Section 628 of the Companies Act, 1956 and the same is bailable and as regards the signing of the Financial Statements for the years 2013-14 and 2014-15, the provisions of Section 448 of the Companies Act, 2013 are not attracted. Learned counsel further contends that the alleged incident took place in the year 2017, whereas the present com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail punishment under Section 447 of the Act. She further argues that there is no term like Dummy Director in the Companies Act, 2013 and having signed the Financial Statements, the petitioner cannot wriggle out of his criminal liability. I have heard the learned counsel for the parties. The petitioner claims himself to be a Dummy Director. However, there is nothing on record to authenticate the said plea. As per the Companies Act, a Director is required to discharge his duties with due diligence ensuring that there is no siphoning off and/or diverting of the funds. Still further having actively participated in the affairs of the Company and having signed the Financial Statements, the petitioner cannot take the plea that him being a dormant Director, no liability can be fastened upon him. In respect of the contention of the learned counsel for the petitioner that the petitioner is not accused of the offence under Section 447 of the Companies Act, 2013 and hence, the twin-conditions of Section 212(6) would not be applicable to him, it would be just and relevant to reproduce Section 448 of the Companies Act, 2013 as under:- "448. Punishment for false statement.- Save as otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Reasons, for which the 2002 Act came into being. This declaration by the Parliament itself is testimony of compelling necessity to have stringent regime (enactment) for prevention and control of the menace of money-laundering. Be it noted that under Article 38 of the Constitution of India, it is the duty of the State to secure social, economic and political justice and minimize income inequalities. Article 39 of the Constitution mandates the State to prevent concentration of wealth, thus, to realize its socialist goal, it becomes imperative for the State to make such laws, which not only ensure that the unaccounted money is infused back in the economic system of the country, but also prevent any activity which damages the economic fabric of the nation. It cannot be gainsaid that social and economic offences stand on a graver footing as they not only involve an individual direct victim, but harm the society as a whole 47th Law Commission Report. Thus, the Law Commission also in its 47th report recommended an increase in punishment for most of the offences considered therein. Further, the quantum of punishment for money-laundering offence, being only seven years, cannot be the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions predicated in Section 45 of the 2002 Act. The underlying principles of Section 45 of the 2002 Act would get triggered in either case before the relief of bail in connection with the offence of money-laundering is taken forward. Any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by the Parliament for prevention of money-laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country. 141. As a result, we have no hesitation, in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 142. There is, however, an exception carved out to the strict compliance of the twin condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion after taking into account the non obstante provision of Section 37 of the NDPS Act, which imposed the rigors of twin conditions for release on bail. It was observed: "15. ....We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh Vs. State of Punjab. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225, release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
