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TMI Blog2024 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... esent writ petition. Thus, the petitioner s apprehension was correct and ultimately came true by issuance of the Notice dated 9.11.2023. The Departmental Circular dated 20th June, 2016 relied on by the respondent is an internal document. The contents of the circular are mostly illegible. In any event, the consent/sanction referred to in section 470(3) of The Code of Criminal Procedure would only be applicable where the prosecution has exceeded the limitation period due to the requirement for sanction from the concerned authority. The reasons persuade the Court to allow the prayers in the writ petition and excuse the petitioners and each one of them of any criminal liability in respect of the alleged defaults complained of by the respondent in the impugned notice dated 6th October, 2020. The respondent is accordingly restrained from instituting or proceeding with any criminal proceedings in respect of the matter referred to in the notice dated 6th October, 2020 or take any further steps in respect thereto. Petition allowed. - HON BLE JUSTICE MOUSHUMI BHATTACHARYA For the Petitioner : Mr. Ratnanko Banerji, Sr. Adv. Ms. Manju Bhuteria, Adv. Ms. Ramya Hariharan, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioners had reasons to apprehend that a criminal proceeding may be initiated against them and that mere filing of a criminal complaint would not oust the jurisdiction of the High Court under section 463(2) of the 2013 Act. It is also submitted that the respondents have not followed due procedure before initiating criminal proceedings and further that sanction from the Central Government was not required for initiating criminal proceedings under the Act. Counsel submits that the petitioners have acted honestly and with due diligence and should hence be excused from any criminal liability and relieved of the alleged defaults complained of in the impugned Notice. 5. Learned counsel appearing for the respondent / Registrar of Companies (ROC) submits that a proceeding under section 463(2) of the Companies Act, 2013 is applicable only where the petitioner has reasonable apprehension of a proceeding and where the proceeding itself has not been initiated. Counsel submits that a proceeding has already been initiated in the present case before the Metropolitan Magistrate Court on 11.8.2023 prior to filing of the instant application. It is submitted that the Metropolitan Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther documents were provided. The Deputy ROC issued yet another mail on 12.5.2020 seeking further documents and the Company replied on 5.6.2020 providing the documents requested for. 10. The impugned Notice / preliminary findings letter was issued by the Inspecting Officer cum Deputy ROC on 6.10.2020 to the Company listing alleged contraventions. The letter was also issued to the petitioners / Directors of the Company. The Company sent a detailed reply on 17.11.2020 responding to each and every allegation contained in the impugned notice dated 6.10.2020. A summons was thereafter issued on 5.3.2021 by the Joint Director cum Inspecting Officer under section 207(3) of the Act. 11. The ROC instituted criminal proceedings against a group Company, namely, Shivpujan Vyapaar Private Limited, which subsequently merged with the Company in June, 2023. Shivpujan had earlier provided a detailed response on 12.11.2020 to the preliminary findings letter dated 6.10.2020. 12. The petitioners filed the present writ petition on 18.10.2023. A supplementary inspection Notice was issued by the Office of the Regional Director on 9.11.2023 under section 206(5) of the 2013 Act requesting for discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negligence, default, breach of duty, misfeasance or breach of trust, he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a court before which a proceedings against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub-section (1). 17. The respondent s contention of only Special Courts being vested with that power is hence not acceptable. 18. The Court also finds substance in the petitioners contention that the respondent has not followed due process before initiating the criminal proceedings. In Venkatesan Thyagarajan vs. Registrar of Companies, Tamil Nadu (Company Petition Nos. 405 to 409 of 2014) a Learned Single Judge of the Madras High Court held that a show cause notice should result in an adjudication wherein the decision should be communicated to the person whose rights are liable to be affected. The Court also held that the decision should take into consideration the replies of the concerned person. 19. In the present case, the respondent did not pass any reasoned order pursuant to the reply given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offences alleged relates to the year 2014 - 2019 and under section 468(2) of The Code of Criminal Procedure, 1973, the limitation period for offences punishable with fine is 6 months and for offences punishable for imprisonment not exceeding 1 year is 1 year. Even if the limitation is reckoned from the date on which the first notice of enquiry was issued i.e. 6th October, 2018 or the date of issuance of inspection notice i.e. 15th July, 2019 or even the date of the preliminary finding letter i.e. 6th October, 2020, even then the offences are barred by limitation. This has also been clearly stated in the petition which considers each of the sections in the Companies Act, 1956 and under the 2013 Act in respect of offences which have been alleged against the petitioner. 23. The provisions under which the notices have been issued, the limitation period of such offences are 6 months to a maximum period of 1 year. Hence, the Court agrees with the argument that the offences alleged in the impugned notice are barred by limitation and cannot be taken cognizance of. A Division Bench of this Court took the same view on the offences being barred by limitation in Bhagwati Foods P. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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