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Anil Mohan Banerjee Vs. Registrar of Companies and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberCriminal Revision Case Nos. 1792 to 1802 of 1976
Judge
Reported in[1979]49CompCas338(Cal)
ActsCompanies Act, 1956 - Sections 417, 418, 418(2), 419 and 420
AppellantAnil Mohan Banerjee
RespondentRegistrar of Companies and ors.
Appellant AdvocateDilip Kumar Dutta, ;Dipankar Ghosh, ;Ranjit Kumar Dutta, ;Chittaranjan Bag and ;Sasanka Kumar Ghosh, Advs.;Alak Biswas, ;Pulak Ranjan Mandal, ;S. Sengupta, ;Ravindra Nath Sinha, ;Ashit Kumar Goswami,
Respondent AdvocateJ.N. Ghosh and ;Anjan Kumar Mukherjee, Advs.
Excerpt:
- .....for condonation of delay for 11 months starting with march, 1973. it was alleged that the accused persons are/were the officers, as directors/secretary of the company at all relevant times and have contravened the provisions of section 418(4) of the companies act, 1956, and have rendered themselves liable for the offence punishable under section 420 of the companies act, 1956. it has been alleged in each of the complaint that the books of account and papers of bata india ltd. were inspected by an officer authorised by the central government under section 209(4) of the companies act, 1956, the inspecting officer submitted a report in october, 1974. in the course of the inspection of the books of account of the aforesaid company serious cases of irregularities in the.....
Judgment:

A.N. Banerjee, J.

1. These eleven rules raise the common question of law, namely, whether the learned Chief Metropolitan Magistrate acted illegally in condoning the application under section 473 of the Code of Criminal Procedure filed by the complainant-opposite party provisionally and whether he was also justified on the averments made in the petition of complaint to issue process under section 420 of the Companies Act, 1956 (1 of 1956), against the accused petitioners.

2. It appears that on May 20, 1976 the complainant-opposite party No. 1 filed 11 petitions of complaint with applications for condonation of delay for 11 months starting with March, 1973. It was alleged that the accused persons are/were the officers, as directors/secretary of the company at all relevant times and have contravened the provisions of section 418(4) of the Companies Act, 1956, and have rendered themselves liable for the offence punishable under Section 420 of the Companies Act, 1956. It has been alleged in each of the complaint that the books of account and papers of Bata India Ltd. were inspected by an officer authorised by the Central Government under Section 209(4) of the Companies Act, 1956, The inspecting officer submitted a report in October, 1974. In the course of the inspection of the books of account of the aforesaid company serious cases of irregularities in the administration of the provident fund accounts as also several cases of contravention of the provisions of different rules relating to provident fund accounts of the employees as also of provisions of Section 418 of the Companies Act, 1956, were noticed. The said company had created a trust for its managerial staff in the name and style of ' The Managerial Staff Provident Fund ' and in respect of other employees in the name and style of ' The Statutory Provident Fund '. In view of the creation of such trust, the company is bound to collect the provident fund contributions of the employees concerned and pay such contributions as Well as its own contributions to the trustees of the fund within 15 days from the date of collection, as per requirements of Sub-section (4) of Section 418' of the Companies Act, 1956. Thereafter it was alleged in each of the complaints as to how for each respective month the company, in contravention of the provisions of Sub-section (4) of Section 418 of the Companies Act, has not deposited the contributions of the provident fund within the statutory time as mentioned in Sub-section (4) of Section 418 of the Companies Act, 1956.

3. It appears that the learned Chief Metropolitan Magistrate considered the application for condonation of delay and by an order dated May 20, 1976, condoned the delay provisionally with an observation that it would be open to the accused persons to canvass the bar of limitation on appearance. After such provisional condonation of delay he proceeded to take cognizance of the offence on the basis of such complaints and issued processes under Section 420 of the Companies Act, 1956, against the accused persons including the accused petitioner. On the same day he transferred the case to another learned metropolitan magistrate for disposal. After putting in his appearance the accused petitioner took objection before the learned Chief Metropolitan Magistrate for stopping the whole proceeding and for his discharge on the ground that the learned magistrate had acted without jurisdiction in taking cognizance of the offence. Such application was rejected by the learned Chief Metropolitan Magistrate on the view that there was no question of limitation. It is as against such two orders passed by the learned Chief Metropolitan Magistrate that the present rules were obtained.

4. Having heard the learned advocates appearing for the respective parties I am of the view that the learned Chief Metropolitan Magistrate acted illegally and without jurisdiction in condoning the delay provisionally. Section 468 of the Code of Criminal Procedure, 1973, operates as a bar to the taking of cognizance of an offence by a magistrate and unless and until such bar is lifted the magistrate has no power or jurisdiction to take cognizance of an offence which is barred by limitation. It is within the competence of the learned magistrate to condone the delay in accordance with the provisions of Section 473 of the Code. In fact, in the present cases the complainant-opposite party filed applications under Section 473 of the Code for condonation of delay before the learned Magistrate. It was incumbent upon the learned magistrate to condone the delay before taking cognizance of the offence. He had no power or authority to condone the delay provisionally and then to take cognizance of the offence. Accordingly, the order dated May 20, 1976, passed by the learned Chief Metropolitan Magistrate condoning the delay provisionally is without jurisdiction and as such must be set aside.

5. I would have thought of sending back the matter to the learned Chief Metropolitan Magistrate with a direction to proceed in accordance with the provisions of law from the stage the complaints were filed and prior to the passing of the orders dated May 20, 1976, had I not been satisfied that the complaints do not make out a case for issue of process under Section 420 of the Companies Act against the accused persons including the accused-petitioner. Section 420 of the Companies Act lays down that any officer of a company, or any such trustee of a provident fund, as is referred to in Sub-section (4) of Section 418 of the Act, who knowingly contravenes or authorises or permits the contravention of the provisions of Section 417, 418 or 419 shall be punishable with imprisonment for a term which may extend to six months or with a fine which may extend to Rs. 1,000. In order to attract the penal provisions of this section a complaint must prima facie indicate that an officer of a company or any such trustee of a provident fund, as is referred to in Sub-section (4) of Section 418 has knowingly contravened or has authorised or has permitted the contraventions of the provisions of Section 417, 418 or 419. In other words, the petition of complaint must disclose that the offender has knowingly contravened or has authorised or has permitted the contravention of the aforesaid provisions. In none of the petitions of complaint which are before us, there is any indication to the effect that any of the accused persons has knowingly contravened or authorised or permitted contravention of the provisions of Section 418 of the Companies Act. On the other hand the averments made in para. 6 of the petition of complaint indicates complete non-application of the mind and does not show how the accused persons were responsible for the commission of the alleged offence. In the absence of such indication in the petition of complaint the learned Chief Metropolitan Magistrate has had no authority or jurisdiction to issue process under Section 420 of the Companies Act against any of the accused persons including the accused petitioner. It may be that excepting the accused petitioners the other accused persons are not before me but having regard to the circumstances as stated above and also in view of what I have said, it must be held that the entire proceeding pending against all the accused persons must be quashed.

6. In the result the rules are made absolute. The impugned orders are set aside and the proceeding pending against the accused persons including the accused petitioner are hereby quashed.


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