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TMI Blog2022 (4) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The complaint allegation shows that petitioners have not filed E Form 5 INV as required in the show cause notice issued dated 21.07.2014 given by the respondent. However, it is the case of the petitioners that they gave reply dated 28.07.2014 explaining their position and requesting dropping the further action. The complaint allegation shows that no reply was received from the petitioners. Copy of the reply dated 28.07.2014 sent by the first petitioner shows that the reply was received by the office of the Registrar of Companies on 30.07.2014. Petitioners 2 to 4 had also sent a reply dated 05.08.2014, reading the reply dated 28.07.2014 of the first petitioner. Their reply were received in the office of the Registrar's office on 08.08.2014. Therefore, it is clear that the allegation made in the complaint that respondent's show cause notice dated 21.07.2014 was not replied by the petitioners is not correct. It is true that the show cause notice dated 21.07.2014 had just reproduced the Section 205C of the Companies Act, 1956. Though the amounts referred in (a) to (g) are liable to be credited to Investors Education and Protection Fund. The show cause notice is not specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form 5 INV as required under the above rule. Show cause notice was issued on 21.07.2014. No reply was received from the petitioners. Therefore, petitioners are liable to be prosecuted for the offence aforesaid. 5. Learned counsel for the petitioners submitted that the complaint is not maintainable in law for the following reasons, a) The show cause notice dated 21.07.2014 is silent as to period and as to which of the amounts mentioned under clauses (a) to (g) required under sub-Section (2) of Section 205C of the Companies Act 1956 was not credited to the Investors Education and Protection Fund by the first petitioner/accused company; b) The show cause notice dated 21.07.2014 itself is silent as to how and in what way the provisions of the Investors Education and Protection Fund (uploading of information regarding unpaid and unclaimed amounts lying with companies) Rules, 2012 were violated or contravened by the first petitioner/accused company. c) Replies to the show cause notice dated 21.07.2014 issued by the respondent/complainant were indeed given by each of the petitioners/accused, and the said replies were not duly considered. d) Unpaid dividend shall not form part of Investors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first instance, when the complaint is perused one gets an impression that the petitioners were never put on notice and no explanation was submitted by them. When the complainant has issued a show cause notice on 24.10.2013, calling upon the petitioners to explain within seven days, as to why the prosecution should not be launched or bound to disclose the issuance of notice, the reply given and then make a statement in the complaint as to how the offence still continues. 53. In the absence of any of these grounds in the complaint, it is a good ground to quash the complaint....... This Court in Crl.O.P.Nos.23034 23035 of 2015 in L. Ganesh and one another Vs. The State of Tamil Nadu dated 19.08.2019, held that, 18. The petitioners have given a detailed reply for the show cause notice issued by the respondent. This reply has not been taken into consideration either at the time of granting sanction or at the time of filing of the complaint. This Court has already held that where a reply has been given to the show cause notice, the said reply has to be considered and dealt with at the time of filing of the complaint, failing which, the complaint itself becomes unsustainable on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and unpaid for a period of seven years from the date they became due for payment. The dividend was declared for the period ending 31.03.2013. Therefore, giving a show cause notice before the completion of seven years and launching the prosecution is illegal. However, this submission of the learned counsel for the petitioners, in the considered view of this Court cannot be entertained for the reason that Section 205C of the Companies Act, 1956 deals only the amounts which are liable to be credited to Investors Education and Protection Fund. The following amounts shall be credited to the aforesaid fund. a) Amounts in the unpaid dividend accounts of companies; b) The application moneys received by companies for allotment of any securities and due for refund; c) Matured deposits with companies; d) Matured debentures with companies; e) the interest accrued on the amounts referred to in clauses (a) to (d), f) grants and donations given to the fund by the Central Government, State Governments, Companies or any other institutions for the purposes of the fund; and g) the interests or other income received out of the investments made from the fund; 11. It also refers that the amounts refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the respondent. However, it is the case of the petitioners that they gave reply dated 28.07.2014 explaining their position and requesting dropping the further action. The complaint allegation shows that no reply was received from the petitioners. Copy of the reply dated 28.07.2014 sent by the first petitioner shows that the reply was received by the office of the Registrar of Companies on 30.07.2014. Petitioners 2 to 4 had also sent a reply dated 05.08.2014, reading the reply dated 28.07.2014 of the first petitioner. Their reply were received in the office of the Registrar's office on 08.08.2014. Therefore, it is clear that the allegation made in the complaint that respondent's show cause notice dated 21.07.2014 was not replied by the petitioners is not correct. It is apparent that though the petitioners had given a reply within the time given in the show cause notice, the reply was not considered. The ratio of the judgments referred by the learned counsel for the petitioners shows that filing complaint without considering the reply, amounts to non application of mind and that is a ground for quashing the complaint. 14. One more ground, a valid ground claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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