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Judgment
K. Natarajan, J.—This criminal revision case has been directed against the order dated March 30, 1993, passed in Crl. M. P. No. 2007 of
1992 in C. C. No. 371 of 1992 dismissing the complaint filed by the petitioner, Registrar of Companies, Tamil Nadu, Coimbatore, as time-barred.
The revision petitioner, Registrar of Companies, Coimbatore, filed a complaint against the respondents that they have committed lapses
punishable u/s 113 of the Companies Act on the ground that share certificates were not despatched within two months. The learned Chief Judicial
Magistrate, Coimbatore, the then Nilgiris, took the case on file as C. C. No. 371 of 1992, The respondent/accused filed an interlocutory
application in Crl. M. P. No. 2007 of 1992 alleging that the offence u/s 113 of the Companies Act is punishable with fine only and, therefore, the
complaint ought to have been lodged within six months from the date of the offence.
The revision petitioner filed a counter stating, the accounts of the first respondent-company were inspected by the revision petitioner on July 20,
1992, and only on that date, he came to know about the lapse and the complaint was lodged on March 28, 1992, within six months. The secretary
of the first respondent-company had issued a reply notice on August 25, 1992, admitting the delay in despatching share certificates to the
shareholders. Therefore, the complaint filed is not barred by time.
The learned trial magistrate on an enquiry accepted the contentions of the respondent/accused and concluded that a petition u/s 473 of the
Criminal Procedure Code ought to have been filed by the revision petitioner for excusing the delay in not filing the complaint within six months from
the date of the offence and since no application was filed, the complaint was time-barred and dismissed the complaint. The correctness of the said
order is being canvassed in this revision petition.
Learned counsel for the revision petitioner contended that share trainsfer certificates were sent in two batches on November 23, 1990, and
December 10, 1990. The first batch was received by the first respondent-company on December 1, 1990. It was approved on March 29, 1991,
and transfer share certificates were despatched on April 6, 1991. The second batch of certificates were received on December 26, 1990, and it
was approved on April 3, 1991, and the share transfer certificates were despatched on April 16, 1991. None of the shareholders had made any
complaint to the Registrar of Companies. Inspection was conducted as per Section 209A of the Companies Act on July 20, 1992, after a long
delay of several months and the prosecution show-cause notice was issued on August 20, 1992, and a complaint was filed on August 28, 1992. It
is contended that the first accused is the company. The second accused is the managing director and the third accused is the secretary. It was
submitted, the prosecution case had been filed u/s 113(2) of the Companies Act by the Registrar of Companies as if he is the aggrieved party. The
Registrar of Companies is an aggrieved party in respect of offences which fall under Sections 159, 165, 166, 210 and some other sections of the
Companies Act and so far as the offence u/s 113(2), the Registrar of Companies is not the aggrieved party. If at all there is any aggrieved party, it
is only the shareholders and as already stated, none of the shareholders had sent any application to the Company Law Board that he has not
received transfer share certificate within the stipulated period of two months and therefore on the merits of the case, the prosecution is bad. So far
as the limitation is concerned, though the transfer share certificates were despatched on April 6, 1991, and April 16, 1991, no inspection was
conducted within a reasonable period and show-cause notice was issued, Only after a period of one year and three months after the transfer share
certificate were despatched, the inspection was conducted and the complaint was filed on August 28, 1992, after issuing the show-cause notice.
As the offence u/s 113(2) is punishable with fine only, the complaint ought to have been filed within a period of six months from the date of the
lapse and as the complaint was filed long after six months without filing a petition to excuse the delay as contemplated u/s 473 of the Criminal
Procedure Code, the complaint is barred by time and the trial magistrate is correct in holding that the complaint has been filed out of time and
dropping further proceedings.
Learned counsel for the revision petitioner contended, no periodical inspection is undertaken by the Company Law Board or the Registrar of
Companies as there are several thousands of companies in Tamil Nadu and inspection is conducted once in a year only if there is any complaint
regarding the balance-sheet and connected lapses.
It was argued that the lapse, viz., the delay in despatching the transfer share certificates came to the notice of the Registrar of Companies only
on July 20, 1992. In other words, the Registrar of Companies got knowledge of the lapse only on July 20, 1992, viz., the date on which the
inspection was conducted and after issuing a show-cause notice on August 20, 1992, the complaint was filed on August 28, 1992, within a period
of six months. It was also stated that A-l and A-3 in their reply notice dated August 25, 1992, had admitted the delay in despatching the transfer
share certificate within the prescribed period of two months. Therefore, the complaint filed is not barred by limitation. It was further contended that
as per Section 621 of the Companies Act, offences against the Act are cognizable only on the complaint by the Registrar of Companies and in the
present case, the Registrar of Companies had filed the complaint and, therefore, the court has to hold that he is the aggrieved party.
In support of the above argument, reliance was placed by learned counsel for the revision petitioner on the unreported case in (1) Crl. M. P.
No. 175 of 1990, dated December 23, 1992, (2) Abdul Rahim v. State, Represented by the Chit Registrar [1978] Crl. L, W. 195 and (3)
Ompra-hash Gulabhchandji Partani v. Ashok [1992] 2 Crl. L. J. 2704 (Bom).
Learned counsel for the respondents argued that the scheme of the Act if considered analytically, it is very clear that as per Sub-clause (3) of
Section 113, the Registrar of Companies is not the aggrieved party and a prosecution can be launched only on the application of an affected
shareholder. In the case on hand, no shareholder had made a complaint or sent in application to the Company Law Board complaining about the
delay. The explanation that the lapse came to the notice of the Registrar of Companies only on the date of inspection is no answer for the long
delay in filing the complaint. Sub-clause (3) of Section 113 reads as follows :
If any company on which a notice has been served requiring it to make good any default in complying with the provisions of Sub-section (1), fails
to make good the default within ten days after the service of the notice, the Company Law Board may, on the application of the person entitled to
have the certificates or the debentures delivered to him, make an order directing the company and any officer of the company to make good the
default within such time as may be specified in the order and any such order may provide that all costs of and incidental to the application shall be
borne by the company or by any officer of the company responsible for the default.
A reading of the abovesaid section makes it clear that on the application of the person entitled to have the certificates or the debentures
delivered to him within the prescribed time alone, an order directing the company and any officer of the company shall be made to make good the
default within such time as may be specified by the Registrar of Companies. It was pointed out that no prejudice or loss was caused to the
Company Law Board and since no shareholder had sent an application, the complaint filed is incompetent and also barred by time. It is true that in
the above rulings, the interest of public at large was given the main consideration and, therefore, it was held the Registrar of Companies gained
knowledge only from the date of inspection or the date of the receipt of the chemical report and the complaint was held to be in time. In the
present case, admittedly, no application has been sent by any of the shareholders that by the delay, he was put to difficulty or any loss was caused
to him. The explanation that there is no adequate machinery to conduct periodical inspection, in my opinion, does not appear to be a convincing
answer to excuse the delay in filing of the complaint, especially when the Registrar of Companies cannot be the aggrieved party u/s 113 of the
Companies Act. Therefore, I am of the view that no error manifest on the face of the record had been committed by the trial Magistrate or any
miscarriage of justice had occurred. Hence, I find no reason to interfere with the order of the trial Magistrate.
In the result, the revision fails and is dismissed.