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Bhagabati Prasad Tantia and ors. Vs. Assistant Registrar of Companies - Court Judgment

LegalCrystal Citation
SubjectCompany;Criminal
CourtKolkata High Court
Decided On
Case NumberCr. Rev. Nos. 115 and 116 of 1980
Judge
Reported in[1983]53CompCas56(Cal),85CWN216
ActsCompanies Act, 1956 - Sections 2(40), 210(5), 545 and 621; ;Code of Criminal Procedure (CrPC) , 1973 - Section 469(1)
AppellantBhagabati Prasad Tantia and ors.
RespondentAssistant Registrar of Companies
Appellant AdvocateBalai Ch. Roy and ;Tapan Kr. Mitra, Advs.;Basanta Kr. Dutta, Adv.
Respondent AdvocateJ.N. Ghosh and ;Anjan Mukherjee, Advs.
Cases Referred(Sushil Kr. Lahiri v. Registrar of Companies
Excerpt:
- .....officer, whichever is earlier.' 3. mr. roy, in the first place, submits that in both the cases the asst. registrar has filed the petition of complaint. it cannot be said, mr. roy contends with much emphasis, that an asst. registrar of companies is a person aggrieved by the offence. in order to take advantage of this subsection, it is necessary to establish that the complainant is a person aggrieved. mr. roy submits that there is absolutely no reason why an asst. registrar of companies will be aggrieved by the offence. in this connection, mr. roy further submits that in order to see whether a person is aggrieved or not it must be established that some personal grief has been caused to him. the allegation in the petition of complaint is that the balance-sheet and p & l a/cs., were not.....
Judgment:

N.C. Mukherjee, J.

1. These two revision cases arise on applications under Section 401 read with Section 482 of the Code and are for quashing all proceedings under Section 210(5) of the Companies Act, 1956. Case No. C/604 of 1978, out of which Criminal Revision No. 115 of 1980 arises, is pending before the learned Metropolitan Magistrate, 14th Court, Calcutta. Case No. C/786 of 1978, out of which Criminal Revision No. 116 of 1980 arises, is pending before the learned Metropolitan Magistrate, 6th Court, Calcutta. In both the cases, on behalf of the petitioners, it was contended before the learned Magistrate that cognizance was wrongly taken as the petitions of complaint were filed beyond the period of limitation. The learned Magistrates negatived the contentions and hence, the Rules. In the first case, the learned Magistrate found that the offence, complained of, is a continuing offence and as such Section 468 of the Code is not applicable. In the other case, it was found on facts that the petition of complaint was filed within the period of limitation. Being aggrieved by the aforesaid orders, the petitioners have come up to this court.

2. Mr. Balai Ch. Roy, learned advocate appearing on behalf of the petitioners, contends that on the face of the petition of complaint it appears that the same was filed beyond one year after the alleged date of commission of the offence. In both the cases, the complainant wants to take advantage of Section 469(1)(b) of the Cr. PC. The said sub-section reads as follows :

'The period of limitation, in relation to an offender, shall commence where the commission of the offence was not known to the person aggrieved by the offence of or to any police officer, the first day on which the offence comes to the knowledge of such person or to any police officer, whichever is earlier.'

3. Mr. Roy, in the first place, submits that in both the cases the Asst. Registrar has filed the petition of complaint. It cannot be said, Mr. Roy contends with much emphasis, that an Asst. Registrar of Companies is a person aggrieved by the offence. In order to take advantage of this subsection, it is necessary to establish that the complainant is a person aggrieved. Mr. Roy submits that there is absolutely no reason why an Asst. Registrar of Companies will be aggrieved by the offence. In this connection, Mr. Roy further submits that in order to see whether a person is aggrieved or not it must be established that some personal grief has been caused to him. The allegation in the petition of complaint is that the balance-sheet and P & L a/cs., were not placed at the company's annual general meeting. This being the allegation, according to Mr. Roy, such negligence and/or omission which amounts to an offence cannot cause any grief to the Asst. Registrar. It may cause grief to the shareholders of thecompany. In support of his contention, Mr. Roy refers to a decision reported in [1978] Cr LJ 116 (Mad) (Sulochana v. State Registrar of Chits, Investigation and Prosecution, Madras). This was a case under the Tamil Nadu Chit Funds Act and the complaint was filed by the Registrar of Chits (Investigation and Prosecution), Madras. It was held by Natarajan J.

'The words 'person aggrieved by the offence ' occurring in Section 469(1)(b) and (c) should be given a limited or restricted coverage, viz., one who is personally and directly affected by an offence, and not to any member of public or even an officer who is charged with the duty of enforcing the prohibitory regulations under a statute. The Registrar has come forward with the complaint in performance of his official duty and not on account of any grievance felt or sustained by him personally in the contraventions committed by the petitioner. Complaints preferred in discharge of one's official duty are vastly different in character and nature from complaints preferred by person aggrieved by commission of the offences. They distinctly fall in two different categories and the 'former is not to be confused with the latter.'

4. This decision, no doubt, supports the contention raised by Mr. Roy. But it may be mentioned that His Lordship was not considering any alleged offence committed under the provisions of the Companies Act. A similar point was urged on behalf of the petitioners in an unreported decision of our court in Criminal Revision No. 687 of 1978, (Sushil Kr. Lahiri v. Registrar of Companies, West Bengal) (reported in [1983] 53 Comp Cas 54) It was urged that, the Registrar of Companies is not the person aggrieved and the knowledge of the Registrar is immaterial in computing the period of limitation. This contention was negatived by P.C. Barooah and A.N. Banerjee JJ., in the following words (p. 55):

'We find no substance in the arguments of the learned advocate for the petitioners. Under Section 621 of the Companies Act read with Section 2(40) of the Act, the Asst. Registrar of Companies was a person competent to file such a complaint. That being so, the Asst. Registrar of Companies was the person aggrieved in the instant case.'

5. Section 2(40) of the Companies Act defines 'Registrar' in the following way :

''Registrar' means a Registrar, an Additional, a Joint, a Deputy or an Assistant Registrar having the duty of registering the Companies under this Act.'

6. So, there is no difficulty in the matter of filing a petition of complaint by an Asst. Registrar. Section 621 of the Companies Act provides as follows :

'No court shall take cognizance of any offence against this Act (other than an offence with respect to which proceedings are instituted under Section 545), which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of the Company or of a person authorised by the Central Government in that behalf......'

7. Thus, it is seen that in respect of offences under the Act a complaint in writing can be filed only by the Registrar, or a shareholder of the company or by a person authorised by the Central Govt. None else is entitled to file a complaint. With reference to this section, Mr. Roy contends that in respect of offences other than the offence under the Companies Act a complaint can be filed by a person who is not aggrieved by the offences. But according to Section 621 only three specified classes of persons can file a written complaint on which cognizance can be taken. That being so, according to Mr. Roy, only the shareholders of the company can be aggrieved by the offence under the Companies Act and no other person, and as such, the Asst. Registrar who has filed the complaints cannot take advantage of the provisions of Section 469(1)(b) of the Cr. PC.

8. Mr. J.N. Ghosh, learned advocate appearing on behalf of the opposite party, submits that the Registrar of Companies controls some affairs of the company and some papers are required to be filed in the office of the Registrar of Companies. Violation of certain obligations prescribed in the Companies Act amounts to an offence. In such a case, it is the Registrar of Companies who is to see whether an offence has been committed or not and the Registrar of Companies in such a case, according to the provisions of Section 621 is quite competent to file a written complaint on which the Magistrate may take cognizance. This being the position, Mr. Ghosh submits that the Registrar of Companies, as also an Asst. Registrar of Companies must be considered as a person aggrieved and as such was entitled to take advantage of the provisions of Section 469(1)(b) of the Act. After hearing the learned advocates for the parties at length we are unable to rely on the Madras decision referred to by Mr. Roy. We find no reason to differ from the Bench decision of this court, and hold that an Asst. Registrar of Companies must be considered as the person aggrieved by the offence and he is entitled to get the benefit of the provisions of Section 469(1)(b) of the Code.

9. In the result, the application fail and the rules are discharged. The learned Magistrates are directed to proceed with the case in accordance with law. Let the records go down immediately.

Monoj Kumar Mukherjee , J.

10. I agree.


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