May 4, 2012
Jiyuan LI V. Registrar Of Companies & Tianjin Tianshi India Pvt Ltd V. Registrar Of Companies Breif Facts: The Registrar of Companies (ROC) received a complaint regarding the affairs of M/s. Tianjin Tianshi India Pvt Ltd (Company) being irregular and illegal. A letter dated 24.02.2004 was issued by the ROC to the company to enquire about its affairs. This was duly replied vide letter dated 15.04.2004. The reply was examined and thereafter an order dated 19.04.2004 under Section 234(1) of the Companies Act was issued to the company which remained unresponded. Thereafter another order dated 16.06.2004 under Section 234 (3A) of the Act was issued by ROC requesting the Company to furnish the desired information, which had no response. As no response was received qua the aforesaid two orders, a show cause notice dated 26.07.2005 was issued to the company under Section 234 (4) (a) of the Act which also did not evoke any response. Thereafter a report was sent by ROC to the Central Government in terms of Section 234 (6) of the Act seeking advice for prosecution of company under Section 234 of the Act. It was thereafter that the Complaint was filed in the Court of Additional Chief Metropolitan Magistrates (ACMM) by the ROC against the Company and its functionaries including the petitioners. The ACMM passed the order of summoning of all the accused including the petitioners. The present petitions assail the order dated 11.09.2007 passed by the Ld. Addl. Metropolitan Magistrate (ACMM) summoning the petitioners. Decision: Petition allowed. Reasons: (a) From the perusal of the record, it can be seen that there is no evidence which was brought by the respondent to prima facie prove the service of such orders on the petitioner company. The receipt of such statutory orders is an essential condition for alleging non-compliance of the orders of the respondent. Reply to the letter by the petitioner company cannot be equated to acknowledgment of a statutory notice as per the requirement of law. In the present case, absence of any documentary proof of service of such orders of ROC on the petitioner company indicates that the prosecution was initiated without giving any opportunity to the petitioner company to advance its reply. Thus, prima facie it is seen that the statutory orders under Section 234 of the Act was not delivered to the petitioner and that being so the complaint was not maintainable. (b) The show cause notice to the petitioner was issued on 26.7.2005, whereas the cognizance of the offence by the learned Trial Court was taken on 11.9.2007. The contention of the counsel for the respondent that the complaint was filed within the period of limitation as the limitation period commenced from the date the Central Government gave its approval for prosecution, cannot be accepted as there is no embargo under Section 234 of the Act for the respondent to seek approval from the Central Government before initiating the prosecution against the petitioner. The period of limitation for taking cognizance of the offences commences when the knowledge of the commission of offence is gained by the prosecuting agency. Thus, the present offence is not a continuing offence and the complaint prima facie, is time barred. In view of the above discussion, this seems to be a fit case for the exercise of the inherent powers possessed by this court under Section 482 CrPC to meet the ends of justice. Accordingly, the petition is allowed and the summoning order is quashed qua the present petitioners.