Farouk Irani and Another vs Registrar of Companies and Another

M. Chockalingam, J.—The challenge in this appeal is to the order of dismissal of C.P. No. 265 of 2001 (Farouk Irani v. Board for Industrial and Financial Reconstruction [2002] 110 Comp Cas 64 (Mad)), by the learned single judge, whereby the petitioners'' request to exercise the discretion of the court u/s 633(1) of the Companies Act, 1956, read with Rule 11(a)(23) of the Companies (Court) Rules, 1959, to relieve the petitioners from criminal prosecution pursuant to the show-cause notice issued by the first respondent in No. 6423/CI/209A/628/2001 dated July 27, 2001, was denied.

The facts, which led the petitioners/appellants to file the said appeal were that the first petitioner is the managing director of M/s. First Leasing Co. of India Ltd. and the second petitioner is formerly the company secretary of the said company between October 4, 1994 and November 15, 2001. The books of account and registers of the said company were made u/s 209A of the Companies Act, 1956 and the inspection report was submitted on May 1, 2000. Certain violations of mandatory provisions of the Companies Act, 1956, and the rules were pointed out and that the returns were not in accordance with the requirements and hence, there was a violation of Section 161(2)(9) of the Companies Act. On receipt of the show-cause notice, an explanation was offered by the petitioners/appellants, inter alia, stating that there was no violation that the invocation of Section 628 of the Act was misconceived and hence, the action was not maintainable since the entire essential requirements were not satisfied with. Apart from that, it was also averred that the company has filed a revised return incorporating the details and particulars and also paid the additional fees thereon. Pending consideration of the said explanation, the show-cause notice referred to above was served upon the petitioners. Apprehending the criminal action pursuant to the show-cause notice, the company petition was brought before this Court.

On enquiry, the learned single judge has taken a view that it was not a fit case, where the discretionary power vested upon the court could be exercised in favour of the petitioners and accordingly, the company petition was dismissed. Hence, this appeal has arisen at the instance of the petitioners.

Advancing the arguments on behalf of the appellants, learned Counsel would submit that their company, which has been functioning for nearly about three decades, at no point of time, had been found with any fault. The returns for the years 1996-97, 1997-98 and 1998-99 were submitted on July 3, 1997, May 18, 1998 and May 21, 1999, respectively. It is true that the inspection was made. Following the inspection report dated May 1, 2000, all the defects were noticed. Immediately, a letter was written to the Registrar of Companies on August 9, 2000, i.e., within a few months from the receipt of the inspection report, wherein all the necessary details and particulars were given. Following the same, on June 13, 2001, a revised return was made, whereby all the mistakes, which were pointed out by the authorities, were rectified. But when the show-cause notice was issued on July 27, 2001, neither the letter addressed to the Registrar of Companies dated August 9, 2000, nor the revised return dated June 13, 2001, was referred to, but it has proceeded that those violations were relating to mandatory provisions and why not the prosecution could be launched against the petitioners. Learned Counsel would further submit that in the instant case, the court has to necessarily exercise discretionary powers since they were all mere acts of inadvertence and they were not deliberate or dishonest or misconceived and if they were found to be either dishonest or deliberate or misconceived, the prosecution has got to be launched. In the instant case, when immediately after the inspection report was served, all those defects were noticed, and a communication was addressed, whereby the correct particulars were given and that would clearly indicate the bona fide of the petitioners. Apart from that, a revised return was also placed. Under such circumstances, merely because the mistakes are found or crept in in the returns, it cannot be said that it was a fit case for launching prosecution, but in the instant case, they are found to be bona fide mistakes and hence it is a fit case where the court should exercise its discretionary powers in favour of the appellants and thus they should be relieved from launching the prosecution.

Contrary to the above contentions, learned Counsel appearing for the respondents would submit that in the instant case, 20 violations were noticed and many of them were the violations of mandatory provisions and thus, in a given case, once they violated the mandatory provisions, they cannot be taken or termed as mistakes crept in and in a case where the acts committed by the petitioners were deliberate or dishonest, it has got to be decided only on adducing evidence before the court of law. But, in the instant case, it is quite clear that the acts of the petitioners are violative of the mandatory provisions. Thus, the learned single judge was perfectly correct in refusing to exercise discretionary power vested upon the court, and hence, the appeal has got to be dismissed.

The court has paid anxious consideration on the submissions made by learned Counsel on either side.

It is not in controversy that a show-cause notice as referred to in the petition dated July 27, 2001, was served on the appellants. They immediately gave a reply whereby there was no violation of Section 628 of the Act and further invocation of the provisions was misconceived and hence, the action was not maintainable. But at this juncture, it is pertinent to point out that they were not inadvertently crept in. Further, it is true, that to the show-cause notice they have given an explanation and following the explanation, show-cause notice emanated. Now, the contention put forth by learned Counsel for the appellants is that immediately after the inspection report, a communication was addressed on August 9, 2000, to the Registrar of Companies, furnishing correct figures. At this juncture, it is pertinent to point out that the inspection report was served upon the petitioners on May 1, 2000, but they have sent the communication on August 9, 2000. In the opinion of the court, such a communication addressed to the Registrar of Companies itself will not be construed as a rectification of the mistakes. But the revised return was filed only on June 13, 2001, nearly after one year from the date of inspection report. Further, in the instant case, the returns were filed for the years 1997, 1998 and 1999 on July 3, 1997, May 18, 1998 and May 21, 1999, respectively, and they were of the period of nearly three years. So far as the violations, as could be seen from the report, are concerned, there were nearly 20 violations and most of them were the violations of mandatory provisions and at no stretch of imagination, the violation of mandatory provisions could be termed as or taken as "mistakes crept in" and it is needless to say that the powers vested upon this Court u/s 633 of the Companies Act, 1956, to grant the relief is, firstly, discretionary. Secondly, the petitioners have to satisfy the following conditions stipulated u/s 633 of the Act:

(1) the lapse or offence alleged must be one of the kinds mentioned in Section 633(1).

(2) the applicant must be shown to have acted honestly and reasonably; and

(3) the court is in a position to conclude or render the finding with regard to all the circumstances of the case, that the officer ought to be excused fairly.

In order to exercise the discretionary power u/s 633(2), all the conditions u/s 633(1) of the Act must be satisfied. But in the instant case, as rightly pointed out by learned Counsel for the respondents, without adducing evidence, the court cannot come to a conclusion that whether the petitioners have acted honestly and reasonably and further in the instant case, there is nothing available to conclude or record a finding as to the circumstances which attended in making such violations. In the instant case, as could be noticed, there were violations of mandatory provisions and they could not be termed as mistakes. Apart from this, when this is not a fit case, as rightly found by the learned single judge, the court could not exercise discretionary power in favour of the petitioners. In the said circumstances, this Court is of the view that the appeal does not carry merit and it is liable to be dismissed.

Accordingly, the Original Side appeal is dismissed. There will be no order as to costs. The period during which the operation of show-cause notice was stayed by this Court has got to be necessarily excluded.