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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 ..... 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 defines Key Ministerial Personnel in relation to Company and it provides an exhaustive list of Officers - 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. 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. Petition dismissed. - Misc. Criminal Case No. 42303 of 2022 - - - Dated:- 7-12-2022 - Hon'ble Shri Justice Anand Pathak For the Petitioner : Shri Praveen Surange And Shri N.K.Dave - Advocates For the Respondents : Shri Praveen Kumar Newaskar Deputy Solicitor General ORDER Present pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received deposits which were to be paid back after a specified time. Board of Directors specifically authorized Chairman cum Managing Director, CEO cum Whole-time Director of the Company to repay the deposits and for necessary compliance related to the said deposits accepted by the Company. 5. When the petitioner came to know about the fact of non repayment of deposits by the Company to the depositors then the petitioner as alleged, tried to raise objections and ultimately he resigned from the Company on 16/4/2015 as per Form DIR-11 showing the resignation of petitioner w.e.f. 31/03/2015. It further appears that Company filed an application seeking extension of time to repay the deposits before Learned Company Law Board, Mumbai and said Board vide order dated 11/3/2015 directed the Managing Director of the Company to make immediate payment to respective fixed deposit holders. 6. Meanwhile, show cause notices were received by petitioner dated 4/2/2015 and 13/2/2015 which were issued by Assistant Registrar of Companies, Madhya Pradesh at Gwalior alleging therein non-compliance of Section 58-A(9) of Companies Act, 1956 and 74(2) of the Companies Act, 2013, required the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 74(3) of Companies Act, 2013 and directed all the accused named therein to appear before the Court. Pursuant to order dated 14/10/2016, petitioner did not appear before the learned Special Court and marked his presence through his counsel only. Petitioner again moved an application dated 18/8/2017 before learned Special Judge (trial Court) for termination of proceedings against the petitioner raising specific grounds contained therein, based on Section 2(60)(V) and Section 149(12) of the Companies Act, 2013 and in light of Master Circular No. 1 of 2011 issued by respondent No. 1. 12. Petitioner also filed an application under Section 227 of Cr.P.C. for discharge on the basis of subsequent event i.e. circular dated 2/3/2020 issued by MCA (respondent No. 1). The said application remained pending since then. One application filed under Section 317 read with Section 205 of Cr.P.C. is being dismissed by the learned Special Judge. Other arguments including the question of jurisdiction were also considered by the Court below and decided the point of jurisdiction and found the Special Court within its jurisdiction to take cognizance. All accused were called to appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at petitioner as accused No. 4 was appointed as Additional Director for period 29/11/2006 to 30/03/2007. Thereafter, accused Company filed Form 32, through which the complainant, Registrar of Companies, was informed that there has been a change in designation of petitioner from Additional Director to Director w.e.f. 30/3/2007. Therefore, he worked for eight years as Director of Company. Therefore, petition is based on incorrect facts and false submissions and therefore, is misconceived. 19. Since, petitioner -Pramod Kishore Shrivastava was a Director in the Company having full knowledge of all decisions/actions taken through Board process, is equally liable for all the cause of Company including criminal liability for violation of provisions of Section 74 of Companies act, 2013. Trial would decide the respective roles of accused persons and at this stage, no case is made out for interference. He prayed for dismissal of the petitioner. 20. Heard learned counsel for the parties at length and perused the documents appended thereto. 21. This is a case where raison d' etre of petitioner's submissions is his status in the Company as Non-executive Independent Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such other officer, not more than one level below the directors who is in whole-time employment, designated as key managerial personnel by the Board; and (vi) such other officer as may be prescribed. 24. Similarly, Section 2 (60) of the Companies Act, 2013 defined Officer who is in default and it also provides an exhaustive list. Same is reproduced hereinbelow for ready reference:- 2. Definition.- (60) officer who is in default , for the purpose of any provision in this Act which enacts that an officer of the company who is default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any of the following officers of a company, namely:- (i) whole-time director; (ii) key managerial personnel' (iii) where there is no key managerial personnel, such director or directors as specified by the board in this behalf and who has or have given his or their consent in writing to the Board to such specification, or all the directors, if no director is so specified; (iv) any person who, under the immediate authority of the Board or any key managerial personnel, is charged with any responsibility inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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