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TMI Blog2023 (1) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to any other body corporate, whose affairs have been investigated by virtue of Section 239, being guilty of any offence for which he is criminally liable, the Central Government may, after taking such legal advice as it thinks fit, would prosecute such person for the offence and it shall be the duty of all officers and other employees and agents of the company, or body corporate, other than the accused in the proceedings, to give the Central Government all assistance in connection with the prosecution which they are reasonably able to give. It is thus, seen that the Central Government is well within its power to prosecute such person for the offence in relation to the company or in relation to any other body corporate whose affairs have been investigated by virtue of Section 239. There is no hurdle for the Central Government to prosecute such person if it appears to the Central Government that such person is guilty for any offence for which he is criminally liable. It is the discretion of the Central Government to take legal advice as it thinks fit. As per mandate of Section 242 of the Companies Act, the application of mind on the said report and if necessary the legal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, CRL.M.C. 1949/2014 CRL.M.A. 16481/2015,CRL.M.C. 1950/2014 CRL.M.A. 16479/2015, CRL.M.C. 1951/2014 CRL.M.A. 16617/2015 CRL.M.C. 1952/2014 CRL.M.C. 1953/2014 CRL.M.C. 1954/2014 CRL.M.A. 16616/2015 CRL.M.C. 1955/2014 CRL.M.C. 1956/2014 CRL.M.A. 16483/2015 CRL.M.C. 1957/2014 CRL.M.C. 1958/2014 CRL.M.A. 16485/2015 For the Petitioner: Mr. Harish Vaidyananthan Shankar, CGSC, Mr.Srish Kumar Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advocates. For the Respondent: Mr. Sidharth Luthra, Sr. Advocate, alongwith Mr. Samarjit Pattnaik, Mr. Vikas Gogne, Mr. Puneet Relan and Mr. Asif Ahmed, Advocates for Respondent No.1. Mr. Vibhor Garg and Mr. Atul Sinha, Advocates for R-6. JUDGMENT 1. In this batch of 15 petitions filed under Sections 482 and 483 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') read with Section 227 of the Constitution of India, common order dated 08.01.2014, passed by the Court of learned Additional Sessions Judge - 02, Central, Delhi, affirming order dated 25.09.2012, passed by learned ACMM (Special Acts), Central, Delhi, dismissing an application for condonation of delay in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were violations of various provisions of the Companies Act and SFIO was requested to file prosecution for violation of the provisions of the Companies Act. On 01.12.2008, a complaint under Section 200 of the Cr.P.C. read with Section 621(1A) of the Companies Act was filed by SFIO against respondent company and others. The SFIO also filed an application under Section 473 of the Cr.P.C. for condonation of delay in filing the complaint, mainly on the ground that the time taken for obtaining sanction/permission i.e. between 26.11.2007 to 03.06.2008 be excluded for computing the limitation under the provisions of Section 469 read with Section 470(3) of the Cr.P.C. (vi) Vide order dated 25.09.2012, the learned ACMM rejected the application for condonation of delay, consequent thereto, the complaint was found to be barred by limitation, accordingly, the same was also dismissed. (vii) The petitioner/SFIO, filed revision before the revisional court which has also been dismissed in terms of the impugned order and therefore, the SFIO is in the present petitions. 3. Learned counsel appearing on behalf of the petitioner made the following broad submissions :- (i) Under the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing on behalf of the petitioner/SFIO, therefore, submits that the power of SFIO emanates from the power of the Central Government to authorise a person and such power cannot be equated with the power of the Registrar or of a shareholder of a company who do not require any sanction from the Central Government to file a complaint. The case in hand is not with respect to sanction or direction but the same relates to the compliance of a statutory provision. (vi) Without prejudice to his submissions as recorded hereinabove, he further states that it is well settled legal position that in the case of this nature, delay ought to have been condoned considering the gravity of the allegations against the respondent companies. 4. Learned counsel appearing on behalf of the petitioner further distinguished the decisions relied upon by the courts below and it has been submitted that the cases relied upon do not relate to filing of a complaint by SFIO or any person authorised by the Central Government but they relate to the power of the Registrar of Companies (hereinafter referred to as 'ROC') to file a complaint. It is for this reason, he states that the power to file co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Section 242 of the Companies Act does not envisage obtaining of a prior sanction for filing of a complaint before the Magistrate. The decision of the Central Government under Section 242 of the Companies Act, is entirely an administrative process and cannot be equated with the status of a prior sanction or permission. While placing on record a copy of the Gazette Notification dated 06.05.2005, issued by MCA, it is pointed out that in exercise of power conferred by sub-Section 1 of Section 621 of the Companies Act, the Central Government had already authorised officers for filing and conducting prosecution under the Companies Act and one of the officers so authorized was Giriraj Singh, who filed the present complaint. Therefore, when there was already an authority for him to file the complaint by virtue of Gazette Notification, it cannot be heard from SFIO that for lack of permission, SFIO could not have filed the complaint before 03.06.2008. (iii) Unlike other statues like Section 19 of the Prevention of Corruption Act and Section 132 (6) of the Central Goods and Services Tax Act, 2017, there is no such provision in the Companies Act, which prohibits courts from taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 7 SCC 656, Pritam Singh v. State of Punjab 1981 SCC OnLine P H 5, R.P. Sharma v. State 1990 SCC OnLine Del 179 and Mohit Kumar Mookherjee v. Registrar MANU/WB/0455/1981. (vii) With respect to the date of commencement of limitation period under Section 469(1)(b) of the Cr.P.C., he has placed reliance on a decisions of the Hon'ble Supreme Court in the case of Anil Kumar Gupta v. Union of India 2022 SCC OnLine SC 1534, Surinder Mohan Vikal v. A.L. Chopra (1978) 2 SCC 403, and Rajiv Kumar v. Registrar of Companies NCTof Delhi (2009) 151 Comp Cas 434 (Delhi). For the purposes of drawing distinction between sanction and direction, he placed reliance on decision of the Hon'ble Supreme Court in the case of Rameshwar Bhartia v. State of Assam (1952) 2 SCC 203. 7. I have heard Shri Harish Vaidyanathan, learned CGSC appearing on behalf of SFIO and Shri Siddharth Luthra, learned senior counsel assisted by Shri Samarjit Pattanik, appearing on behalf of the respondents and perused the record. 8. It is true that the object of introduction of Section 397(3) of the Cr.P.C. is to prevent a second revision so as to avoid frivolous litigation. However, at the same time, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Central Government before the initiation of proseuction against accused companies. 12. The moot question that arises for consideration of this court is whether the period commencing from 26.11.2007 to 03.06.2008 i.e. the date on which the SFIO submitted its report to MCA and the date on which MCA convyed SFIO to file a complaint respectively, is to be excluded for the purposes of counting limitation in terms of Section 468 of the Cr.P.C. 13. The exclusion of the said period is sought on the strength of the provisions of Sections 469 470(3) of the Cr.P.C. Before proceeding further, it would be appropriate to refer certain provisions of the Cr.P.C. and of the Companies Act which are being reproduced as under:- (i) Sections 468 to 470 of the Cr.P.C. are being reproduced as under: 468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.- In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded. (4) In computing the period of limitation, the time during which the offender- (a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or (b) has avoided arrest by absconding or concealing himself, shall be excluded. 14. Sections 242 and 621 of the Companies Act are also reproduced as under:- 242. Prosecution. - (1) If, from any report made under section 241, it appears to the Central Government that any person has, in relation to the company or in relation to any other body corporate, managing agent, secretaries and treasurers or associate of a managing agent or secretaries and treasurers, whose af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of sub- section (1). 15. Section 242 of the Companies Act prescribes that if from any report made under Section 241, it appears to the Central Government that any person has, in relation to the company or in relation to any other body corporate, whose affairs have been investigated by virtue of Section 239, being guilty of any offence for which he is criminally liable, the Central Government may, after taking such legal advice as it thinks fit, would prosecute such person for the offence and it shall be the duty of all officers and other employees and agents of the company, or body corporate, other than the accused in the proceedings, to give the Central Government all assistance in connection with the prosecution which they are reasonably able to give. 16. It is thus, seen that the Central Government is well within its power to prosecute such person for the offence in relation to the company or in relation to any other body corporate whose affairs have been investigated by virtue of Section 239. There is no hurdle for the Central Government to prosecute such person if it appears to the Central Government that such person is guilty for any offence for which he is crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of the authority conferred on him by the Central Govt. Notification G.S.R. 284(E) dated 6th May 2005 published in Gazette of India on 11-05-2005. Accordingly the complainant pursuant to the publication of the notification in the official gazette is authorized to file the present complaint under section 621(1) of the Companies Act, A- 1956. A copy of the official gazette is marked as ANNEXURE-1 to the complaint wherein the name of the complainant is appearing at Serial no. 10. 21. Notification dated 06.05.2005 is also reproduced as under: MINISTRY OF COMPANY AFFAIRS NOTIFICATION New Delhi, the 6th May 2005 G.S.R. 284(E )- In exercise of the powers conferred by the sub-Section(1) of Section 621 of the Companies Act, 1956 (1 of 1956), the Central Government hereby authorise the following officers in the Serious Fraud Investigation Office (SFIO), Ministry of Company Affairs for the purposes of filing and conducting prosecution under the Companies Act, 1956 1. Shri B.S. Negi Assistant Director 2. Shri K.S. Nagar Assistant Director 3. Shri Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly convey the said officer to file the complaint, the same should have been done immediately, so as to ensure that the complaint is filed within a period of six months. Since the Central Government itself had taken about six months time to take a decision and then the SFIO took time to prepare the complaint to present it in the court, that cannot be a reason to exclude the period between 26.11.2007 to 03.06.2008. The SFIO who is only an authorized person can not claim exclusion of limitation, when it has no separate identity to file the complaint. 24. The Hon ble Supreme Court in the decision of Rakesh Kumar Jain (supra) has considered the import of the word consent and sanction as appearing in Sub Section 3 of Section 470 of the Cr.P.C. in the context of the provision of Section 13(3) of the Official Secret Act, 1923. It has been held that under Sub Section 3 of Section 13 of the Official Secret Act, it is provided that cognizance of offence under the said Act can be taken only upon complaint which is (a) filed by order of the appropriate government; (b) filed under authority of the appropriate government; (c) by some officer empowered by the appropriate g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and any delay on the part of the Central Government in taking the decision, cannot be construed to be in the benefit of the Central Government that too when, the same has not been explained at all. In appropriate case, under Section 473 of the Cr.P.C., the courts are empowered to take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has properly been explained or that it is necessary so to do in the interest of justice. 29. A perusal of the application for condonation of delay does not explain any reason or steps taken by the Central Government between 26.11.2007 to 03.06.2008. The only reason for condonation of delay sought for is to exclude the period between 26.11.2007 to 03.06.2008, as without any sanction or consent the SFIO could not have filed the said complaint. Since this court has already held that no previous consent or sanction was necessitated in terms of Section 242 read with Section 621 of the Companies Act, therefore, the said period cannot be excluded, and even the period of limitation cannot be extended in the instant case. 30. In view of the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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