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TMI Blog2023 (1) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ers" by Learned IX Additional Sessions Judge, Gwalior/ Special Court (Companies Act, 2013), Gwalior, Madhya Pradesh and B. By quashing the criminal proceedings pending before Learned IX Additional Sessions Judge, Gwalior/Special Court (Companies Act, 2013), Gwalior, Madhya Pradesh in Criminal Complaint No. SC/128/2016 titled as "Registrar of Companies Vs. M/s. Plethico Pharmaceutical Limited and Others" so in far as related to the present Petitioner in the interest of justice. Or II. The petitioner further prays to grant any other relief which the Hon'ble Court deems fit and proper in the facts and circumstances of the present case to secure the ends of Justice." 3. Precisely stated facts of the case are that on 4/12/1991 M/s. Plethico Pharmaceuticals Private Limited (hereinafter shall be referred to as "Company") was incorporated as private limited company under companies Act, 1956. Later on it got converted into a Limited Company and it continued to be so. Petitioner as submitted was appointed as Additional Director in the category of Non-executive Independent Director in the Company w.e.f. 29/11/2006 pursuant to Section 263 of Companies Act, 1956. As the Company was lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector, Whole Time Director, Key Managerial Personnel, Company Secretary and also against the petitioner as Independent director and same was registered as Criminal Complaint No. 1627/2015 in which CJM issued summons to the petitioner. 9. Aggrieved by issuance of said summons, petitioner filed a petition under Section 482 of Cr.P.C. before this Court vide M.Cr.C.No. 6465/2015. This Court after hearing the parties, passed an order dated 16/7/2015 by which petition was disposed of with a direction to the petitioner to prefer appropriate application raising the question of want of jurisdiction before the learned Magistrate within a period of 30 working days from the date of order and the same was directed to be decided by learned Magistrate. Meanwhile, interim protection was given to the petitioner. 10. After passing of order dated 16/7/2015, on 1/10/2016 application for jurisdiction was heard by learned CJM, Gwalior and fixed the date 3/10/2016 for pronouncement of order. On that date, learned CJM, Gwalior returned the complaint under Section 201 of Cr.P.C. to complainant (respondent No. 2 herein) on the ground that as per the memorandum dated 25/7/2016, Special Court was constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2 (60) (Officer who is in default) of the Companies Act, 2013 and Section 149(12) of the Companies Act, 2013 and caused illegality. Section 2 (60) of the Act of 2013 provides list of Officers who may be treated as Officer in default and clause (5) of Section 2 (60) does not include present petition into its ambit, because petitioner was an Independent Director. Case deserves to be filed only against Company and its Managing Directors, Whole Time Director, Company Secretary and not against the petitioner, who was Nonexecutive Independent Director and who had no role to play in day to day affairs of the Company in general and in compliance of provisions of Companies (Acceptance of Deposits) Rules, 2014, in particular. 15. Since, petitioner is not an Officer in default which is a sine qua non for prosecuting the petitioner, therefore, from various provisions of the Companies Act, 2013 it is clear that prosecution against the petitioner is without any factual or legal basis. 16. From the language of Section 74(3) of the Companies Act, 2013, it appears that every officer of Company who is in default shall be punishable with imprisonment which may extend to seven years or with fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, Company raised the deposits in year 2011, therefore, petitioner was well within the knowledge of all the activities / decisions taken by the Company and he was privy to it. Reply filed by respondents was not rebutted by petitioner. Even minutes of the meeting of Board of Directors of M/s. Plethico Pharmaceutical Limited held on 29/11/2006 indicate that petitioner was appointed as Additional Director of the Company and minutes of meeting of Board of Directors of M/s. Plethico Pharmaceutical Limited held on 14/2/2011 indicates the status of petitioner as Director. In the said meeting, decision of inviting deposits was taken. Not only this, Form No. DIR-11 filed by the petitioner as part of Annexure P/6 also indicates that his designation was Director. 23. In sum and substance, petitioner was Director in the Company and even if any doubt exists in respect of his status in the Company whether as Additional Director, Independent Director or Director then it can only be decided on the anvil of evidence to be led by the parties before the trial Court and not invoking the extra ordinary jurisdiction under Section 482 of Cr.P.C. Even otherwise, Section 2(51) of the Companies Act, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer agents, registrars and merchant bankers to the issue or transfer;" 25. Scope of Section 2 (51) (vi) is to be tested on the anvil of evidence. 26. Similarly, Section 2 (60)(v) provides a broad mechanism under which any person related to the Company's affairs can be included. Here it is to be noted that in sub-section (iv) and (v) of Section 2 (60) word person has been used, ergo, it expands the spectrum / scope of "Officer who is in default". Sub-section (iv) and (v) defines exhaustive list of participants in different manner. Therefore, on this count also, case of petitioner lacks merits. 27. In the cumulative analysis, no error of law has been made by Court below while passing the impugned order and rightly taken cognizance against the petitioner. 28. The judgments cited by learned counsel for the petitioner move in different factual realm as here in the instant case respondents established the fact that petitioner was Director in the company, therefore, same are not applicable in the facts and circumstances of the instant case. 29. Petitioner is always at liberty to plead and prove his part of innocence before the trial Court at appropriate stage by raising evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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