This was a draft judgment correcting clerical errors in an earlier Order dated 19.11.2014, which had disposed of a Criminal Original Petition seeking to quash a prosecution under sections 269 and 629A of the Companies Act on limitation grounds.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19..11..2014
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
Crl.O.P.No.28163 of 2009
and M.P.No.1 of 2009
1.Shri Brijesh Sharma
2.S.Govind Rajan
3.Deepak Bhalotia
4.Shiw Kumar Aggarwal
5.K.V.Omprakash
... Petitioners
Vs.
Shri.M.O.Roy,
Assistant Director,
Serious Fraud Investigation Office,
Ministry of Company Affairs,
Government of India,
Having Address at 2nd Floor,
Paryvaran Bhavan , CGO Complex,
Lodhi Road, New Delhi 110 003.
... Respondent
Petition filed under Section 482 of the Code
of Criminal Procedure praying to call for the
records relating to the case in E.O.C.C.No.121 of
2006 on the file of the learned Additional Chief
Metropolitan Magistrate, Egmore, Chennai, and to
For petitioner: Mr.Harshad P.Goklaney
For respondents: Mr.M.Dhanasekaran,
SCGPC
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ORDER
The petitioners are the Accused Nos.3 to 7 in
E.O.C.C.No.121 of 2006 on the file of the learned
Additional Chief Metropolitan Magistrate, Egmore,
Chennai. The respondent has filed the said private
complaint alleging that the petitioners have
committed offences punishable under Sections 269 and
629A of The Companies Act. Seeking to quash the said
case, the petitioners are before this court with this
original petition.
2. The facts of the case would be that as per
sub-section (2) of Section 269 of The Companies Act
no appointment of a person as Managing Director or
whole time Director or Manager in a public limited
company shall be made except with the approval of the
Central Government; unless the said appointment is
made in accordance with conditions specified in
Schedule XIII and a return in the prescribed form is
filed with the Registrar of Companies within 90 days
from the date of such appoint. Here in this case,
according to the prosecution, one Shri.Dinesh Dalmia
was appointed as Managing Director on 01.08.1998 for
a period of five years and remuneration of
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Rs.60,000/- per month was paid to him. Similarly, one
Shri.Govind Rajan was appointed as a Whole time
Director for a period of two years from 01.01.2004 on
a consolidated salary of Rs.40,000/- per month and
the same was paid to him. Further allegation is that
under Section 309 of The Companies Act, remuneration
payable to the Directors of the Company including the
Managing Director or Whole time Director shall be
determined in accordance with and subject to the
provisions of Section 198 of The Companies Act. But,
in this case, it was not done so when the
remuneration / salary was paid to Shri.Dinesh Dalmia
and to Govinda Rajan. This action of the petitioners
would amount to offence punishable under Sections 269
and 629 (a) of the Companies Act is the allegation.
3. I have heard the learned counsel for the
petitioner and the learned Senior Central Government
Panel Counsel for the respondent and also perused the
records carefully.
4. In this petition, it is contended that the
period of limitation provided for the said offence is
six months as provided in Section 468 of Cr.P.C. But,
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in the instant case, the complaint was not laid on
time and thus, it is barred by limitation.
5. But, in the common counter affidavit filed
by the respondent in the connected original petitions
it is stated that there was an order of stay granted
by this order and that the period spent on stay order
should be excluded. It is further stated that the
offences are continuing offences.
6. I have considered the above submissions
carefully.
7. As rightly pointed out by the learned
counsel for the petitioner, the offences are said to
have been committed on 01.08.1998 and 01.04.2004. So
far as the payment was concerned, it was committed up
to 09.02.2004 respectively. Even after deducting the
period spent on stay order, it is obvious that the
complaint was not filed within a period of six months
as provided under Section 468 of Cr.P.C. Therefore, I
hold that the prosecution is barred by limitation.
8. In view of the above, this criminal
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original petition is dismissed and the case in
E.O.C.C.No.121 of 2006 on the file of the learned
Additional Chief Metropolitan Magistrate, Egmore,
Chennai, is hereby quashed. Consequently, connected
MP is closed.
Index : yes / no19.11.2014
Internet: yes / no
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To
1.The Addl. Chief Metropolitan Magistrate, Egmore, Chennai.6
S.NAGAMUTHU. J.,
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Crl.O.P.No.28163 of 2009
19..11..2014
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Crl.O.P.No.28163 of 2009
S.NAGAMUTHU, J.
The Crl.O.P.No.28163 of 2009 was disposed of by this Court on 19.11.2014. That was a petition filed seeking to quash the case in E.O.C.C.No.121 of 2006 on the file of the learned Additional Chief Metropolitan (E.O.II), Egmore, Chennai.
2. After having heard the parties, this Court quashed the said case by an order dated 19.11.2014. But in the operative portion of the order, instead of mentioning that the petition is “allowed”, it has been wrongly typed out as the petition was “dismissed”, though the order further reads that the case was quashed. This clerical mistake was brought to the notice of the Court by the learned counsel for the petitioner. Accordingly, I am inclined to correct the said mistake. The said Paragraph No.8 of the order reads as follows:
“8. In view of the above, this criminal original petition is dismissed and the case in E.O.C.C.No.121 of 2006 on the file of the learned Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai, is hereby quashed. Consequently, connected MP is closed.”
3. In the above paragraph No.8 of the order, the word
“dismissed” in the first sentence is deleted and instead it is
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S.NAGAMUTHU.J.,
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substituted by the word “allowed”. The Registry shall carryout the amendment and issue fresh order copy to the petitioner and all the stakeholders.
06.06.2016
Crl.O.P.No.28163 of 2009
Brijesh Sharma and Ors.
M.O. Roy
S. Nagamuthu
As recorded by the court registry
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