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Registrar of Companies Vs. Utkal Distributors Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 237 of 1973
Judge
Reported in[1978]48CompCas768(Orissa)
ActsIndian Companies Act, 1913 - Sections 32(5); Companies Act, 1956 - Sections 162 and 162(1)
AppellantRegistrar of Companies
RespondentUtkal Distributors Pvt. Ltd. and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateNone
DispositionAppeal allowed
Cases Referred(Pat) and Gopal Khaitan v. State
Excerpt:
.....section 174 of the act if the quorum is not formed it cannot be a good ground for not holding the annual general meeting. 10. the directors of the company are responsible for calling a general meeting and having failed to call such a meeting and thereby contravened section 166 of the act, they cannot be permitted to take advantage of their own wrong and then plead that they could not file the annual return because no meeting was called. subsection (5) of section 32 of the old act provides :if a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding fifty rupees for every day during which the default continues, and every officer of the company who knowingly and wilfully authorises or permits the default, shall be liable to the..........the act.3. respondents nos. 2 and 4 pleaded not guilty to the charge. their contention was that no annual general meeting for the relevant period having been held for want of quorum, the annual return could not be filed with the registrar of companies.4. at the trial, the appellant examined a clerk of the office of the registrar of companies, orissa, who stated that the respondents failed to submit the annual return for the year ending on 30th september, 1969, and that they did not respond to the notices issued to them to make good the default.5. the learned s. d. m. found that no general meeting, of the company had been held during the relevant period. following the decisions in vulcan industries (p.) ltd. v. registrar of companies, orissa [1972] 42 comp cas 326 (orissa) and andhra.....
Judgment:

P.K. Mohanti, J.

1. This appeal has been preferred by the Registrar of Companies, Orissa, Cuttack, against a judgment of the learned S. D. M., Cuttak Sadar, acquitting the respondents of the charge under Section 162 of the Companies Act, 1956 (hereinafter referred to as 'the Act ').

2. Respondent No. 1 is the Utkal Distributors (Private) Ltd., a company registered under the Act, and respondents Nos. 2 to 4 are its directors. Accusation against the respondents was that they failed to comply with the provisions of Section 159 of the Act in not filing before the Registrar of Companies the annual return for the year ended September 30, 1969, and thereby became punishable under Section 162(1) of the Act.

3. Respondents Nos. 2 and 4 pleaded not guilty to the charge. Their contention was that no annual general meeting for the relevant period having been held for want of quorum, the annual return could not be filed with the Registrar of Companies.

4. At the trial, the appellant examined a clerk of the office of the Registrar of Companies, Orissa, who stated that the respondents failed to submit the annual return for the year ending on 30th September, 1969, and that they did not respond to the notices issued to them to make good the default.

5. The learned S. D. M. found that no general meeting, of the company had been held during the relevant period. Following the decisions in Vulcan Industries (P.) Ltd. v. Registrar of Companies, Orissa [1972] 42 Comp Cas 326 (Orissa) and Andhra Provincial Potteries Ltd. v. Registrar of Companies [1969] 39 Comp Cas 1000 (AP) [FB], he acquitted the respondents being of the view that failure to comply with the provisions of Section 159 is punishable only when it is wilful.

6. The learned S.D.M. has wrongly applied the two decisions which relate to cases under Section 220 of the Act and have no application to a case under Section 162 of the Act. Sub-section (1) of Section 162 of the Act corresponds to Sub-section (5) of Section 32 of the Indian Companies Act, 1913 (hereinafter referred to as the 'old Act')- In State of Bombay v. Bandhan Ram Bhandani [1961] 31 Comp Cas 1 (SC), one of the charges against the accused persons was that they knowingly and wilfully authorised the failure to file the summary of share capital for the year 1953 and thereby became punishable under Sub-section (5) of Section 32 of the old Act. The accused persons had been acquitted on the finding that no general meeting of the company was held in the year concerned and no offence under Section 32 of the old Act could be committed till the general meeting had been held. Their Lordships held that a person charged with an offence under Section 32 of the old Act could not rely on his own default in not holding the annual meeting as an answer to the charge. It was further held that the meeting should be held in order that the requirements of Section 32 may be carried out and that the liabilityunder the section would be incurred where the officer has wrongly assisted in the meeting not being held. Obviously, this decision of the Supreme Court was not brought to the notice of the learned S.D.M.

7. In Andhra Provincial Potteries Ltd. v. Registrar of Companies [1969] 39 Comp Cas 1000 (AP) [FB], the question for consideration was whether under Section 220 of the Act the holding of an annual general meeting of the company and laying before it the balance-sheet and the profit and loss account are pre-requisites for a prosecution under Section 220(3) of the Act. Their Lordships held that while it was open to the Registrar to prosecute the persons who had committed default under Sections 166, 159 to 161 and 210 by wilfully not holding the meeting and not fulfilling the requirements of these provisions, any prosecution under Section 220 would be premature without such a meeting being in fact held. Their Lordships observed as follows (page 1017) :

' It is clear that the default in not holding an annual general meeting and preparing statements or returns and filing them before the Registrar, or in not laying the balance-sheet and the profit and loss account before that meeting as required under Sections 166, 159 to 161 and 210 cannot be pleaded in defence of the prosecution.'

8. This decision was affirmed by the Supreme Court in State of Andhra Pradesh v. Andhra Provincial Potteries Ltd. [1973] 43 Comp Cas 514.

9. Under the provisions of Section 166(1) of the Act the company has to hold in each year, a general meeting as its annual general meeting not more than fifteen months from the date of the previous general meeting, unless of course the Registrar, for any special reason, extends the time within which any annual general meeting, not being the first annual general meeting, shall be held, by a period not exceeding three months. It is apparent from these provisions that an annual general meeting, not being the first annual general meeting, is to be held within fifteen months or eighteen months, where it is extended from the date of the last general meeting. According to Section 174 of the Act if the quorum is not formed it cannot be a good ground for not holding the annual general meeting. As provided under Sub-section (4) of Section 174 the meeting shall stand adjourned to the same day in the next week, at the same time and place, or to such other day and at such other time and place as the board may determine and according to Sub-section (5), if at the adjourned meeting also, a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

10. The directors of the company are responsible for calling a general meeting and having failed to call such a meeting and thereby contravened Section 166 of the Act, they cannot be permitted to take advantage of their own wrong and then plead that they could not file the annual return because no meeting was called.

11. Now, turning to the findings of the learned S.D.M. that there can be no conviction under Section 162 of the Act unless the default was wilful, it is to be noted that there is a vital difference between Sub-section (5) of Section 32 of the old Act and Sub-section (1) of Section 162 of the Act. Subsection (5) of Section 32 of the old Act provides :

' If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding fifty rupees for every day during which the default continues, and every officer of the company who knowingly and wilfully authorises or permits the default, shall be liable to the like penalty.'

12. Sub-section (1) of Section 162 of the Act runs as follows :

' If a company fails to comply with any of the provisions contained in Section 159, 160 or 161, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees for every day during which the default continues.'

13. It will thus be seen that the words ' knowingly and wilfully ' occurring in Sub-section (5) of Section 32 of the old Act have been omitted from the corresponding provisions in Sub-section (1) of Section 162 of the Act. The position, therefore, is that the company and every officer of the company who is in default shall be punishable even if the default has not been committed wilfully. This view finds support from the decisions in State v. Linkers Pvt. Ltd. [1970] 40 Comp Cas 17 (Pat) and Gopal Khaitan v. State [1969] 39 Comp Cas 150 (Cal).

14. In view of ray above findings the order of acquittal passed by the learned S.D.M. is liable to be set aside. It appears, however, that respondent No. 3, Naba Kishore Mohanty, did not appear in the trial court and by order dated May 25, 1973, it was directed that the case should be split up against him. By the subsequent order dated July 3, 1973, the learned S.D.M. directed issue of non-bailable warrant of arrest against respondent No. 3 but the case was heard and disposed of before execution of the non-bailable warrant and all the respondents were directed to be acquitted by the judgment dated 5th September, 1973. As respondent No. 3 had not entered appearance and had no opportunity of defending himself the learned S.D.M. went wrong in proceeding with the trial in his absence. The case against this respondent should, therefore, be remanded for re-trial.

15. Under Section 159 of the Act every company shall prepare and file with the Registrar the annual return within sixty days from the date on which each annual general meeting referred to in Section 166 is held. The complainant's case was that the annual general meeting of the company should have been held latest by September 30, 1969, and the annual return made up to that date should have been filed with the Registrar on or before November 29, 1969. The respondents Nos. 1, 2 and 4 failed to submit the annual return with the Registrar by that date and, therefore, they were in default from November 30, 1969, up to the date of decision of the trial court, that is, September 5, 1973.

16. The result, therefore, is that the appeal is allowed and the order of acquittal passed against the respondents is set aside. Respondents Nos. 1, 2 and 4 are convicted under Section 162 of the Act and each of them is sentenced to pay a fine of Re. 0'50 for every day during the period from November 30, 1969, to September 5, 1973. I also direct under Section 626 of the Act that out of the fine amount a sum of Rs. 500 (five hundred) shall be paid to the Registrar of Companies towards the costs of the proceedings.

17. The case against respondent No. 3, Naba Kishore Mohanty, is remanded to the trial court for re-trial.


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