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Emperor Vs. Pioneer Clay and Industrial Works, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany;Criminal
CourtMumbai
Decided On
Case NumberCriminal Appeal Nos. 279 and 285 of 1947
Judge
Reported in(1948)50BOMLR156
AppellantEmperor
RespondentPioneer Clay and Industrial Works, Ltd.
DispositionAppeal dismissed
Excerpt:
.....to file with the registrar of companies three copies of the balance-sheet find the profit and loss account after they have been laid before the company at its general meeting. there is no obligation cast upon the directors of the company to file any such copies if no general meeting has been called.;debendra nath das gupta v. registrar of joint stock companies (1917) i.l.r. 45 cal. 486, dissented from. - - the prosecution alleged that accused nos, 2, 3, 4 and 5 had failed, as required by section 134(4) of the indian companies act, to file with the registrar of companies three copies of the balance-sheet and accounts of the company for the year 1944. it is common ground that no general meeting of the company has been called at which the balances-sheet and the profit and loss..........no general meeting of the company has been called at which the balances-sheet and the profit and loss account for the year 1944 have been laid. turning to section 134(1) it provides that after the balance-sheet and the profit and loss account have been laid before the company at a general meeting three copies thereof signed by the manager or secretary of the company shall be filed with the registrar at the same time as the copy of the annual list of members and summary prepared in acccordance with the requirements of section 32, and the penal sub-section (4) provides that if a company makes default in complying with the requirements of this section, it shall be liable to certain penalty. it is to be noted that what is made penal is default in complying with the requirements of the.....
Judgment:

M.C. Chagla, Ag. C.J.

1. Accused No. 1, which is a limited company, and accused Nos. 2, 3, 4 and 5, who are the directors of that company, were charged under Section 134(4) of the Indian Companies Act, and the learned Additional Stipendiary. Magistrate, First Class, Belgaum, acquitted them, and from that order of acquittal Government have come in appeal.

2. The facts on which the prosecution was founded are not in dispute. The prosecution alleged that accused Nos, 2, 3, 4 and 5 had failed, as required by Section 134(4) of the Indian Companies Act, to file with the Registrar of Companies three copies of the balance-sheet and accounts of the company for the year 1944. It is common ground that no general meeting of the company has been called at which the balances-sheet and the profit and loss account for the year 1944 have been laid. Turning to Section 134(1) it provides that after the balance-sheet and the profit and loss account have been laid before the company at a general meeting three copies thereof signed by the manager or secretary of the company shall be filed with the Registrar at the same time as the copy of the annual list of members and summary prepared in acccordance with the requirements of Section 32, and the penal Sub-section (4) provides that if a company makes default in complying with the requirements of this section, it shall be liable to certain penalty. It is to be noted that what is made penal is default in complying with the requirements of the section and the requirements of Section 134(1) are that there is an obligation cast upon the company to file three copies of the balance-sheet and the profit and loss account after they have been laid before the company at the general meeting. There is no obligation cast upon the company to file any such copies if no general meeting has been called. As I started by saying, it is common ground that no general meeting of the company has been convened at which the balance-sheet and the profit and loss account for 1944 has been laid. Apart from authority it would seem clear on the terms of this section that the company and its four directors have not made any default in complying with the requirements of this sub-section of Section 134.

3. It is contended by the Government Pleader that the directors are themselves in default in not calling a general meeting and it is not open to them to plead in their own defence their own fault. But when we look at the scheme of the Act it is clear that penal provisions are introduced with regard to various things that have got to be done by the company and by the directors at various stages. For instance, under Section 76(1) a general meeting of every company has to be held within eighteen months from the date of its incorporation and thereafter once at least in every calendar year and not more than fifteen months after the holding of the last pre ceding general meeting, and if this is not done, a penalty is provided under Sub-section (2) of Section 76. Again Section 131 provides that the directors of every company must lay before the company in general meeting a balance-sheet and profit and loss account at the time stated in that section, and the failure to do so is made penal by Section 133(3). Therefore, on the facts which are not disputed it is clear that the directors have failed to comply with the requirements both of Section 76(1) and also of Section 131(1). The Government, instead of prosecuting them for what they have failed to do as required by the law and in respect of which they seem to have no defence whatever, have thought fit to launch a prosecution under Section 134(4) when the obvious defence which is put forward by the accused is that the stage has not arrived when they can be called upon to send copies of the balance-sheet and the profit and loss account, because that stage can only be reached after a general meeting has been called and balance-sheet and profit and loss account have been placed before that meeting. Undoubtedly the directors were in default both in not calling a general meeting and also in not laying the balance-sheet and the profit and loss account before such a meeting, but in not carrying out either of these requirements and obligations they rendered themselves liable to the penalties provided by the Act and it was open to Government to prosecute them under either of these two sections.

4. The learned Government Pleader has relied on a decision of the Calcutta High Court in Debendra Nath Das Gupta v. Registrar of Joint Stock Companies I.L.R.(1917) Cal. 486 . There on facts similar to those before us a bench of that High Court consisting of Mr. Justice Teunon and Mr. Justice Richardson took the view that the accused was guilty under Section 134(4). These two learned Judges took the view that it was not open to an accused to plead in answer to a charge under Section 134 his prior default in respect of the calling of the prescribed general meeting and placing before the company at such meeting a duly prepared and audited balance-sheet and they relied on a decision of the English Court, Park v. Lawton [1911] 1 K.B. 588 . When we turn to that decision we find that it is based on Section 36 of the English Act which in its scheme and terms is entirely different from the section with which we are concerned. That section is a composite section which lays down various requirements which are to be complied with by the company under its first four sub-clauses and Sub-clause (5) is the penal sub-section which penalises the failure to comply with any of the requirements contained in any of the four preceding sub-sections. As I have pointed out, the scheme of our Act is very different. We have various stages which have to be gone through before we reach the stage of a copy of the balance-sheet and the profit and loss account being filed with the Registrar and the failure to reach any one of the stages within the time prescribed is made penal by the Act. In our opinion the English decision relied on by the Calcutta High Court does not help us to construe the plain language of Section 134. With respect, therefore, we do not agree with the view taken by the Calcutta High Court. This is not a case where an accused person relies on his default and pleads his innocence. What he says is, I may have committed an offence, but the offence that I have committed is not the one with which I am charged. On the facts proved by the prosecution an offence is not disclosed under Section 134(4). A different offence might have been committed either under Section 74(1) or under Section 133(3). Under the circumstances we agree with the view taken by the learned Additional Stipendiary Magistrate and we are of opinion that the accused are not guilty of the offence with which they are charged. The appeal therefore fails and must be dismissed.


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