Madhya Pradesh High Court
Sanil Prakash Sahu vs Registrar Of Companies Ministry ... on 4 September, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRR No. 3754 of 2023
(SANIL PRAKASH SAHU AND OTHERS Vs REGISTRAR OF COMPANIES MINISTRY OF CORPORATE
AFFIARS AND OTHERS)
Dated : 04-09-2023
Shri Ankur Mody, Shri Vivek Khedkar and Shri V.D.Sharma, learned
counsel for the petitioners.
Shri Praveen Kumar Newaskar, learned Dy. Solicitor General for
respondent/State.
Heard on I.A.No.15876/2023 an application for exemption for
surrendering before the trial Court.
2. The instant criminal revision has been preferred under Section 397 read
with Section 401 of Cr.P.C. against the judgment dated 12.08.2023 passed by
Ninth Additional Sessions Judge, Gwalior in CRA.No.588/2022 arising out of
judgment dated 18.11.2022 passed by CJM Gwalior whereby petitioners who
were Directors of respondent No.2 company were inflicted punishment under
Section 209 A (8) of Companies Act, 1956 with three months' simple
imprisonment with fine of Rs.50,000/- alongwith default stipulation.
3. Since, application under Section 389 of Cr.P.C. for suspension of
sentence cannot be entertained without petitioners/accused being surrendered
therefore, this application has been preferred.
4. It is the submission of counsel appearing for petitioners that petitioner
No.1 who is aged 68 years, is suffering from heart disease which is reflected
from the documents filed in this regard. Similarly petitioner No.2 is aged 71
years. Petitioner No.3 is also aged 70 years and suffering from renal problem
and undergoing dialysis thrice in a week and is resident of Jaipur. All three
petitioners are suffering from old age related medical conditions.
5. Beside that it is the submission of counsel for the petitioners that they
were inducted as Directors of the company in the year 2003 whereas allegations
are in respect of non-production of documents from the period 1999 to 2006
and since they came into the company as Directors in 2003 therefore, they were
in possession of documents since 2003 and not prior to it. Even otherwise,
offence under Section 209 A of the Act, 1956 is primarily civil in nature which
talks about non-production of documents before the authority. Neither any tax
evasion, embezzlement of funds or any serious nature of allegations were not
levelled over the petitioners. They are peace loving and reputed members of
society without any criminal record of serious denomination and incidentally, in
the Companies Act of 2013, corporal punishment or confinement has been
omitted and only fine is prescribed.
6. They refer the fact that an application under Section 391 of Cr.P.C.
was preferred at appellate stage for bringing additional facts/documents on
record but without deciding the same, final judgment has been passed. Learned
counsel for the petitioners relied upon the order dated 20.01.2020 passed by
Hon'ble Apex Court in the case of Asim @ Munmun @ Asif Abdulkarim
Solanki Vs. The State of Gujarat reported in 2019 Lawsuit (Guj) 678 in
support of submission.
7. They also referred the judgment of Apex Court in the case of Vivek
Rai and Anr. Vs. High Court of Jharkhand through Registrar General
and Ors. (2015) 12 SCC 86 and submits that in exceptional circumstances,
Court can exercise such jurisdiction to dispense with surrender aspect and can
hear the matters on application under Section 389 of Cr.P.C. They also relied
upon the order dated 24.03.2022 passed in CRR No.1039/2022 Dr. Ritesh Vs.
Yogendra Kumar and Ors. in which such exemption was given in the case of
offence under Section 138 of Negotiable Instrument Act, 1881 and order dated
23.07.2019 passed in CRR No.3467/2019 (Smt. Lata Vs. Manjul) in which
coordinate Bench has considered the case under the provisions of Negotiable
Instrument Act, 1881. Both were passed by this Court.
8. Learned counsel for the respondent opposed the prayer. According to
him, respondent No.1 has committed offence under Section 209 A of the Act,
1956 and therefore, they have to surrender. He relied upon the 2012 (2) MPLJ
(Cri) 249 Deepak Sahu and Ors. Vs. State of M.P. . However, he could not
dispute the allegations that they are primarily facing charges in respect of non-
production of documents as per Section 209 A of the Act, 1956.
9. Heard the counsel for the parties at length and perused the documents
appended thereto.
10. This is a case where all three petitioners are in the twilight zone of
their life span and two of them are suffering from health related predicaments in
which petitioner no.3 is suffering from renal problem where dialysis is going on
thrice in a week. Matter pertains to offence under Section 209 A of Companies
Act, 1956 whereby petitioners were duty bound to submit documents before
the Registrar of Companies as warranted by him but they could not produce the
documents as sought by the authority. Therefore, primarily, dispute is not of
heinous nature like that of IPC and other related enactments. Incidentally, rigors
of the punishment in Section 209 A of the Act, 1956 are subsequently diluted in
the Companies Act of 2013 in Section 206 (7) whereby punishment of
confinement has been omitted and only fine is contemplated. Therefore, in the
obtaining facts and circumstances of the case, it appears to be an exceptional
case where the revision can be heard without insisting upon surrender of
petitioners thus, application stands allowed.
11. Petitioners are permitted to address on Section 389 of Cr.P.C. for
suspension of sentence on next date of hearing.
12. Heard on admission.
13. Issue notice to the respondents on payment of process fee through
RAD mode within seven working days, returnable within four weeks.
14. Meanwhile, record be requisitioned, if not already received.
15. List immediately after four weeks.
(ANAND PATHAK)
JUDGE
Ashish*
ASHISH
CHAURASIA
Digitally signed by ASHISH CHAURASIA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001, st=Madhya Pradesh,
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2e2e7e728d9bac85bd3,
pseudonym=CA2EA6EDDF504F8F9C2790FA9A0FD201D0242B6
4,
serialNumber=A926F3CBF979ECA6A4C477577EEDBA3AB4F9459
3A930B98DAE1B0AD16F90B5FD, cn=ASHISH CHAURASIA
Date: 2023.09.05 15:54:23 -07'00'
