Delhi High Court
Sangita Bhutoria & Anr vs Registrar Of Companies, Nct Of ... on 2 June, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 2nd June, 2022
+ CRL.M.C. 82/2020, CRL.M.A. 370/2020
RAMESH CHANDRA SHARMA & ANR. ..... Petitioners
Through: Mr. Rachit Batra and Mr. Sushil
Shukla, Advocates
versus
REGISTRAR OF COMPANIES, NCT OF DELHI AND
HARYANA ..... Respondent
Through: Mr. Bhagvan Swarup Shukla, CGSC
with Mr. Kamaldeep, Advocate
+ CRL.M.C. 782/2020, CRL.M.A. 3188/2020
SANGITA BHUTORIA & ANR ..... Petitioners
Through: Mr. Rachit Batra, Advocate
versus
REGISTRAR OF COMPANIES, NCT OF DELHI & HARYANA
..... Respondent
Through: Mr. Ripudaman Bhardwaj, CGSC
with Mr. Kushagra Kumar,
Advocate.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
1. Though the facts are different in both the petitions, since the issue
involved is common, the two petitions are disposed of vide this common
order.
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:02.06.2022
15:56:41
2. In both the cases, the petitioners have been summoned to face trial
in complaint case Nos.2114/2019 and 2113/2019 respectively filed under
Section 211(7) of the Companies Act, 1956.
3. The ground for filing the complaint by the respondent before the
ACMM, Special Court, Central, Tis Hazari, New Delhi was that they had
not strictly complied with the provisions of Section 211 of the Companies
Act, 1956 as there were discrepancies in their disclosures.
4. In CRL.M.C. 82/2020, the allegation was that the fixed assets were
improperly shown in the Balance Sheet for the year ending 31st March,
2008 without factoring the previous year's fixed assets of Rs.1,36,308/-
and nil inventory had been declared against the previous year's inventory
worth Rs.6,00,000/-. The process of scrutiny took time and it was on 4 th
September, 2015 that a notice under Section 206(1) read with Section 4 of
Companies Act 2013 (sic) was sent. The reply sent by the petitioner dated
26th October, 2015, that the fixed assets could not be shown on account of
a scanning error, was found to be not satisfactory. Thereafter, the sanction
from the Regional Director for the prosecution was obtained on 27th
December, 2017, whereafter, a show cause notice dated 24th August, 2018
was sent to the petitioner. Since the response was not satisfactory, the
complaint was filed.
5. In CRL.M.C. 782/2020, the complaint was filed when on scrutiny it
was found that the Balance Sheet, Profit and Loss Account for the year
ending 31st March, 2013 and 31st March, 2014 had shown Rs.7,500/- and
Rs.20,000/- as income from operations, improperly, respectively, without
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:02.06.2022
15:56:41
proper disclosures having been made. Scrutiny took time and the order
under Section 206(1) read with Section 4 of Companies Act, 2013, calling
upon the Company for the explanation was issued on 4th September, 2015.
This was replied by the Company on 26th October, 2015. Sanction for
prosecution from the Regional Director was obtained on 27th December,
2017. Show cause notice was issued by the respondent on 24th August,
2018, whereafter, the complaint was filed.
6. It is the contention of the learned counsel for the petitioners that the
offence under Section 211(7) of the Companies Act, 1956 was punishable
with imprisonment for a term which could extend to six months or with
fine which could extend to Rs.1,000/- or with both. Therefore, under the
provisions of Section 467 Cr.P.C., the period of limitation prescribed was
one year, and as such, the learned Trial Court could not have taken
cognizance of the offences vide the impugned order dated 12th July, 2019
to summon the petitioners. Reliance has been placed on the judgment of
the High Court of Madras in C.K. Ranganathan Vs. Registrar of
Companies, 2001 SCC OnLine Mad 914 where the court held that the
offence under Section 211(7) of the Companies Act, 1956 for a default had
commenced on 1st April, 1997 and the complaint filed in the year 2000 was
barred by time. Hence, it was prayed that the present complaints be
dismissed.
7. Both the learned counsel for the respondent, Mr. Bhagvan Swarup
Shukla (in CRL.M.C. 82/2020) and, Mr. Ripudaman Bhardwaj (in
CRL.M.C. 782/2020), have argued that the offence under Section 211(7)
of the Companies Act, 1956 was a continuing offence and, therefore, there
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:02.06.2022
15:56:41
was no question of limitation. Reliance has been placed on the judgment of
the High Court of Madras in Teledata Technology Solutions Ltd. (A1) and
others Vs. Deputy Registrar of Companies, 2022 SCC OnLine Mad 102 in
support of this contention. Learned counsel submitted that both the
complaints were filed with applications for condonation of delay and when
the learned ACMM took cognizance, clearly delay had been condoned,
even if the offence was to be treated as not being of a continuing nature.
8. I have heard learned counsel for the petitioners, as also learned
counsel for the respondent, and have also perused the record. It is noticed
that in CRL.M.C. 82/2020, the learned Trial Court while taking cognizance
and issuing summons observed that the "complaint was within limitation".
However, in CRL.M.C. 782/2020, the impugned order does not even refer
to the question of limitation. Significantly in both the complaints, the
respondents have filed applications for condonation of delay. The
observation of the learned ACMM in the order dated 12 th July, 2019 in
complaint case No.2114/2019 that the complaint was within limitation is
against the record. Similarly, in CRL.M.C. 782/2020, complaint case
No.2113/2019, the question of limitation was not even addressed by the
learned Trial Court.
9. It would have been quite simple for this Court to have considered
the question of limitation, but for the fact that both the complaints were
accompanied with applications for condonation of delay. While taking
cognizance, the learned Trial Court has to apply its mind as to whether the
complaint presented was within the period of limitation or not. The learned
Trial Court must also consider whether there were sufficient grounds to
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Digitally Signed
By:MANJEET KAUR
Signing Date:02.06.2022
15:56:41
condone the delay that may have occurred in the presentation of the
complaint. But in the two cases at hand, clearly, the learned Trial Court
overlooked the filing of the application for condonation of delay. The mind
has not been applied to the question of condonation of delay and the
complaint being within the period of limitation.
10. Thus, this Court is left with no choice but to set aside the impugned
orders dated 12th July, 2019 and remand the matters back to the learned
Trial Court to consider the applications for condonation of delay. This
Court also restraints itself from discussing the question whether the
offence complained of, is a continuing offence or not as these questions
would be urged before the learned Trial Court for its consideration. The
petitions are accordingly allowed.
11. The pending applications stand disposed of.
12. The copy of this judgment be sent to the learned Trial Court through
electronic mode.
13. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
JUNE 02, 2022
ck
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:02.06.2022
15:56:41
