Calcutta High Court (Appellete Side)
Pali Commercial Co. Ltd. & Ors vs State Of West Bengal & Anr on 29 June, 2022
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
I.A. No. CRAN/1/2022
in
C.R.R. 1372 of 2022
Pali Commercial Co. Ltd. & Ors.
Vs.
State of West Bengal & Anr.
For the petitioner : Mr. Ayan Bhattacharjee, Adv.
Mr. Anil Choudhury, Adv.
Ms. Sreeparna Das, Adv.
For the State : Mr. Neguive Ahmed, Adv.
Mr. Iqbal Kabir, Adv.
Ms. Tina Mitra, Adv.
Heard on : 29.06.2022
Judgment On : 29.06.2022.
Bibek Chaudhuri, J.
This is an application for extension of interim order of stay.
The complaint case being C.Case No.2361/2021 was registered
against the petitioners for violation of the provision of Section 204 of
the Companies Act, 2013.
It is contended by Mr.Bhattacharjee, learned Advocate for the
petitioners referring to sub-section 4 of Section 204 of the Companies
Act that if a company or any officer of the company or the company
secretary in practice, contravenes the provisions of this section, the
company, every officer of the company or the company secretary in
practice, who is in default, shall be liable to penalty of two lakh
rupees. Thus for violation of Section 204, a penalty is imposed.
According to Mr. Bhattacharjee, penalty is not a penal provision within
the meaning of criminal liability. It is not as same as fine imposed
upon an offender.
Mr. Bhattacharjee also refers to Section 454 of the Companies
Act, which deals with adjudication of penalties. Section 454 runs
thus:-
"454. Adjudication of penalties.-(1) The Central Government may,
by an order published in the Official Gazette, appoint as many officers
of the Central Government, not below the rank of Registrar, as
adjudicating officers for adjudging penalty under the provisions of this
Act in the manner as may be prescribed.
(2) The Central Government shall while appointing adjudicating
officers, specify their jurisdiction in the order under sub-section(1).
(3) The adjudicating officer may, by an order-
(a) impose the penalty on the company, the officer who is in
default, or any other person, as the case may be, stating
therein any non-compliance or default under the relevant
provisions of this Act; and
(b) direct such company, or officer who is in default, or any other
person, as the case may be, to rectify the default, wherever he
considers fit]
[Provided that in case the default relates to non-compliance of
sub-section (4) of section 92 or sub-section (1) or sub-section (2) of
Section 137 and such default has been rectified either prior to, or
within thirty days of, the issue of the notice by the adjudicating
officer, no penalty shall be imposed in this regard and all proceedings
under this section in respect of such default shall be deemed to be
concluded.]
(4) The adjudicating officer shall, before imposing any penalty, give a
reasonable opportunity of being heard to [such company, the officer
who is in default or any other person].
(5) Any person aggrieved by an order made by the adjudicating
officer under sub-section(3) may prefer an appeal to the Regional
Director having jurisdiction in the matter.
(6) Every appeal under sub-section (5) shall be filed within sixty days
from the date on which the copy of the order made by the
adjudicating officer is received by the aggrieved person and shall be in
such form, manner and be accompanied by such fees as may be
prescribed.
(7) The Regional Director may, after giving the parties to the appeal
an opportunity of being heard, pass such order as he thinks fit,
confirming, modifying or setting aside the order appealed against.
(8) (i) Where company [fails to comply with the order made under
sub-section (3) or sub-section (7), as the case may be,] within a
period of ninety days from the date of the receipt of the copy of the
order, the company shall be punishable with fine which shall not be
less than twenty-five thousand rupees but which may extend to five
lakh rupees.
(ii) [Where an officer of a company or any other person] who is in
default [fails to comply with the order made under sub-section (3) or
sub-section (7), as the case may be,] within a period of ninety days
from the date of the receipt of the copy of the order, such officer shall
be punishable with imprisonment which may extend to six months or
with fine which shall not be less than twenty-five thousand rupees but
which may extend to one lakh rupees, or with both."
Thus, it is contended by Mr. Bhattacharjee that for adjudication
of penalty, a criminal court is not authorized to take cognizance on
the basis of a complaint filed by the Registrar of Companies.
I have carefully perused the entire materials on record and the
law related therewith.
In my view the instant complaint cannot be entertained in view
of the provision of Section 454 read with Section 204 of the
Companies Act, 2013.
Mr. Ahmed, learned Public Prosecutor-in-Charge, on the other
hand, submits that at this stage the Court cannot adjudicate the
matter and similar statement may be made before the Trial Court by
the petitioner praying for discharge. I am of the view that when the
petition of complaint is barred specifically under the Companies Act,
this Court has every jurisdiction under Section 482 of the Code of
Criminal Procedure to quash the proceeding. Accordingly, the instant
criminal revision is disposed of quashing complaint case No.2361 of
2021, pending before the Court of the learned Chief Judicial
Magistrate at Alipore.
This will however, not disentitled the opposite party No.2 to
take necessary action under Section 454 of the Companies Act against
the petitioners.
(Bibek Chaudhuri, J.)
