Monoj Kumar Mukherjee, J.
1. The appellant filed a complaint against the two accused-respondents in the court of the learned Chief Judicial Magistrate, Jalpaiguri, for an offence punishable under Section 210(5) of the Companies Act, 1956, hereinafter referred to as ' the Act '. In the complaint it has been alleged that the two accused-respondents, who are the directors of a private company named and styled as Rahimpur Tea Company Private Ltd. having its registered office at Rahaman House, Jalpai-guri, were under an obligation, under Section 210(1) of the Act, to lay before the annual general meeting of the company, which was required to be held by June 30, 1975, the balance-sheet and the profit and loss account for the financial year ending on December 31, 1974. As they failed and neglected to take all reasonable steps to comply with the said provision of Section 210(1) in spite of repeated references made and reminders issued by the complainant, they were punishable under Section 210(5) of the Act.
2. The learned Magistrate took cognizance of the said complaint and issued process against the two accused-respondents by his order dated June 16, 1976. On July 26, 1976, the learned Magistrate heard both the sides as regards offence, if any, disclosed by the petition of complaint and thereafter by his order dated July 28, 1976, discharged the two accused-respondents on the finding that the facts alleged in the complaint do not constitute an offence under Section 210(5) of the Act. Aggrieved by the said order the complainant filed the present appeal with special leave of this court.
3. Though the order of the learned Magistrate is one of discharge, the same must be treated as one of acquittal as the offence under Section 210(5) of the Act is triable as a summons case.
4. In arriving at his finding that the complaint did not disclose any offence under Section 210(5) of the Act the learned Magistrate took the view that since the case of the prosecution was based on the premise that no annual general meeting was held by June 30, 1975, the question of laying the balance-sheet and the profit and loss account as required under Section 210(1) of the Act did not arise. The above view of the learned Magistrate cannot be supported inasmuch as the same is diametrically opposite to the view expressed by the Supreme Court in the case of State of Bombay (now Maharastra) v. Bandhan Ram Bhandani  31 Comp Cas 1. A similar question came up for consideration under the Companies Act, 1913, in that case and the Supreme Court held that if the person charged with the failure to carry out the requirements of the section could have called the meeting, he cannot defeat the provisions of the section simply by not calling the meeting wilfully. In the said decision while considering the provisions of Sections 131 and 133(3) of the Companies Act, 1913, the language of which is almost similar to the provisions of Section 210 of the Act, the Supreme Court further held that it is no defence to the charge for breach of Section 131 to say that a meeting was not called.
5. In view of the above decision of the Supreme Court it must, therefore, be held that the provisions of Section 210(5) of the Act are attracted even in a case where no general meeting was held. In view of my above finding it is not necessary for me to consider as to whether the Explanation to Section 159 of the Act was applicable to the facts of the instant case as was contended by the learned lawyer for the appellant in the trial court.
6. In the result, the appeal is allowed. The order of the learned Magistrate dated July 28, 1976, is hereby set aside and the learned Magistrate is directed to proceed with the case from the stage it reached prior to the passing of the impugned order, in accordance with law and in the light of the observations made hereinbefore.