S.N. Jain vs Registrar Of Companies
2006 Latest Caselaw 861 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition is directed against the order dated 6.11.2000 passed by the learned ACMM, New Delhi whereby the petitioner's application for discharge was dismissed. The learned Senior Counsel appearing for the petitioner pointed out that there was a serious error in the impugned order inasmuch as the complaint that had been initiated against the present petitioner was on the ground that he was a Managing Director of the Company, Star Electronic Limited, on the date on which the company was required to file annual returns and balance sheet for the years 1996-1998. He submitted that as per the Companies Act, 1956, the annual return for the year 1996 had to be filed by 31st October, 1996. As regards the balance sheet for the year 1996, the same had also to be filed on the same date. The complaint was lodged by the Registrar of Companies as late as on 28.5.1999. The main thrust of the arguments of the learned senior counsel was that the petitioner had resigned as the Managing Director of the said company on 6.5.1996 and the same had been notified by the company to the Registrar of Companies by virtue of the filing of Form 32. Therefore, on 31.10.1996, the date on which the annual return of the company prepared under Section 159 of the Companies Act, 1956 was required to be filed, the petitioner was no longer the Managing Director of the said company. The learned Senior Counsel drew my attention to paragraphs 2 and 3 of the complaint under Sections 159/162 of the Companies Act, 1956 in respect of the present petitioner. In paragraph 2 of the said complaint, it is stated that the accused company is represented by Mr S.N. Jain (the present petitioner), "Managing Director of the Company being the principal Officer of the Company. In paragraph 3 again it is mentioned that accused No. 2 is the Managing Director of the company according to the particulars filed in the office of the complainant and is responsible for compliance of the provisions of Section 159 of the Companies Act, 1956. He has pointed out that this is the foundation of the complaint against the present petitioner and this, according to him, has no substance inasmuch as the Form 32 notifying the Registrar of Companies about the resignation of the present petitioner as Managing Director w.e.f. 6.5.1996 was also available with the Registrar of Companies. He referred to the impugned order to indicate that despite the filing of the said Form 32, the learned ACMM failed to accept it as substantive evidence of the fact that the petitioner was no longer the Managing Director of the Company w.e.f. 6.5.1996.

2. The learned Counsel also points out that apart from this one complaint there are six other similar complaints for different years all on the same basis and have been dealt with in the same manner by the impugned order.

3. The learned Counsel for the Registrar of Companies / Complainant submitted that it is an admitted fact that the present petitioner was no longer Managing Director w.e.f. 6.5.1996, however, he continued to be an Officer in charge of the Companies as indicated in Section 5 of the Companies Act, 1956 inasmuch as he continued as non-executive Director of the Company.

4. The complaint has to be seen as it has been made and in the same manner in which it has been made. According to the complaint which is at page 32 of the paper book, it is clear that the present petitioner has been arrayed as an accused on the ground that he was the Managing Director of the Company and not as a non-executive Director of the Company as is now being sought to be contended by the learned Counsel for the Registrar of Companies. Therefore, when the complainant has made the present petitioner an accused in his capacity as the Managing Director of the company, the complainant cannot now turn around and attempt to have the accused prosecuted in a different capacity.

5. In these circumstances, therefore, the impugned order is set aside and the petitioner is discharged in all the seven cases referred to in the impugned order.