Delhi District Court
Roc vs Ms Real Tech Constructions Private ... on 30 September, 2024
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IN THE COURT OF SH. MAYANK MITTAL
ADDL. CHIEF JUDICIAL MAGISTRATE (Spl. Acts)
CENTRAL, TIS HAZARI COURTS, DELHI
ROC Vs. M/s. REAL TECH CONSTRUCTION PVT. LTD.
CC No. : 521945/2016
CNR No. : DLCT02-002560-2013
Date of Institution : 27.09.2013
Name of the complainant : Registrar of Companies,
its registered office NCT of Delhi & Haryana
4th Floor, IFCI Tower, 61,
Nehru Place, New Delhi.
Name of accused : (i) M/s. Real Tech Construction Pvt. Ltd.
his parentage and address etc. D-22, Defence Colony, New Delhi
(ii) Rajeev Behl
E-108, Masjid Moth, Greater
Kailash-3
(iii) Yogesh Gupta
C-355, Defence Colony,
New Delhi-110024
(iv) Pankaj Dayal
B-179, Greater Kailash-1,
New Delhi-110048
Offence complained of : U/s. 220 and 162 of The
Companies Act, 1956.
Date of Judgment : 30.09.2024
Plea of accused : Not guilty
Final Judgment : Accused no.1, 2 & 4 have convicted
Accused no.3 has acquitted
Brief facts and reasons for decision of the case:-
1 The facts of the case of complainant is that M/s Real Tech
Construction Private Limited was incorporated on 01.09.2005 vide
CIN U45201DL2005PTC140281 as a Private Limited company
under the Companies Act, 1956 and having its registered office at
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D-22, Defence Colony, New Delhi, India. As per provision of The
Companies Act, 2013 for default of company, a company and
every officer of the company who is in default is / are liable. That
company and its directors are under the statutory obligation to file
with the Registrar of Companies three copies of the Balance Sheet
and Profit & Loss Account in the prescribed form within 30 days
of the holding of Annual General Meeting and Annual Return in
the prescribed form within 60 days of the holding of Annual
General Meeting referred in Section 166 of The Companies Act,
1956. The Annual General Meeting of the company for the year
ended 31.03.2012 were required to place Balance Sheet and Profit
and Loss Account in the Annual General Meeting by a date not
later than 30.09.2012 i.e. within six months of the close of the
financial year. That Balance Sheet and Profit & Loss Account was
further required to be filed with the complainant on or before
29.10.2012 and the Annual Return made up to that date should
have been filed with the complainant on or before 29.11.2012.
However, accused company had not filed the Balance Sheet and
Annual Return made for the financial year before the complainant
despite the issuance of show cause notice.
2 The present complaint was filed by Sh. Rajneesh Kumar Singh,
the then Assistant Registrar of Companies on behalf of the
complainant. Since the complaint was filed by a public servant
while discharging his duties as a public servant and in his official
capacity, so his examination under Section 200 Cr.P.C was
dispensed with in terms of proviso (a) of Section 200 Cr.P.C.
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Cognizance of offence(s) was taken and the accused were
summoned vide order dated 11.10.2013.
3 Notice of accusation u/s 251 Cr.P.C was framed against the
accused No.2 to 4 on 16.04.2014 to which they pleaded not guilty
and claimed trial. Accused No.1 is already proceeded under
Section 305 Cr.P.C. vide order dated 16.04.2014.
4 The complainant in post notice evidence examined Sh. Rajneesh
Kumar Singh as PW-1:-
4.1 PW-1 Sh. Rajneesh Kumar Singh deposed that he has been
working with the Ministry of Corporate Affairs since 2020 and
working as DROC in the Office of ROC, Delhi & Haryana
since September, 2012. PW-1 further deposed that he was
looking after Legal Cell along with portal work in the office of
ROC and filed the present complaint Ex. PW 1/6. CW deposed
that M/s Real Tech Construction Pvt. Ltd. is a company
registered with the office of ROC and filed certified copy of
the Certificate of Incorporation Ex. PW 1/1 and basic company
data of the above said company Ex. PW 1/2 and stated that
accused Rajiv Behl, Yogesh Gupta and Pankaj Dayal were the
Directors / officer in default in the accused No.1 company and
responsible for the day to day affairs of the accused company
at the relevant time. It is submitted that register of directors,
managing directors, manager and secretary etc. of accused
No.1 company maintained with MCA Portal Ex. PW 1/3 and in
support of electronic record i.e. Ex. PW 1/1 to 1/3, witness
filed certificate under section 65B of The Indian Evidence Act
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Ex. PW 1/4. PW-1 deposed that accused company and its
directors have not filed the annual returns and balance sheet for
the financial year 2012 within the stipulated time with the
office of ROC and they have also not filed annual returns and
balance sheet 2009 onwards as it is statutory duty of the
company and its director to file the annual returns and balance
sheet and profit and loss account with the office of ROC for
each and every financial year as per the provisions of the
Companies Act, hence, accused are liable for the penal action
as per the provisions of the Companies Act. That a show cause
notice dated 09.05.2013 was issued to company and its director
for the aforesaid violation Ex. PW 1/5 (colly.).
4.1.1 PW-1 deposed in his cross examination done by
accused No.3 Yogesh Gupta as follows:
Q. Is everything stated by you in the chief based on rcord
or is there something which is based on personal knowledge
or belief?
Ans. It is based on record.
Q. In reference to your statement that all the three
directors are / were responsible for the day to day affairs of
the company, what record are you relying on?
Ans. As per master data copy attached with the complaint,
three directors Rajiv Behl, Yogesh Gupta and Pankaj Daya
are directors since beginning of the company and they are
the officers in default for all compliances of the company.
Q. On the basis of what record do you say that each and
every director was under an obligation to file the annual
returns?
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Ans. As per the 1956 Act, every director of the company
has to file annual returns and balance sheet for the
compliance of Act.
Q. I put it to you that Mr. Yogesh Gupta was not under
an obligation to file the annual returns in terms of resolution
of the company?
Ans. I am not aware.
Q. Are you aware of the disputes arisen between the
three directors who are also the accused here?
Ans. I am not aware.
Q. The returns filed by the company in the past have
been signed by whom?
Ans. Right now, I am not aware but I can bring the
previous year balance sheet and annual returns and ascertain
who had filed the balance sheet.
Q. I put it to you that Mr. Yogesh Gupta was not
authorized by the Board to file the annual returns or balance
sheet?
Ans. I am not aware.
Q. On what basis do you say that Mr. Yogesh Gupta has
wilfully and deliberately avoided to file the annual return
and the balance sheet?
Ans. Company has not filed any balance sheet and annual
returns after 2009 and Mr. Yogesh Gupta is the Director and
is very much liable for the compliances and annual filing of
the company.
Q. Are you aware that Mr. Yogesh Gupta has resigned
from the company?
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Ans. There is no resolution filed by mr. Yogesh Gupta or
by the company on MCA Portal.
Q. In the event, Mr. Yogesh Gupta has resigned who can
file his resignation on the MCA Portal?
Ans. Other two directors can file resignation of Mr. Yogesh
Gupta with the help of professional like CA & CS.
Q. In your opinion, can a director who has resigned from
the company be liable for any penalty for non compliance
of the provisions of the Act?
Ans. If any default has been done in his directorship period
by the company, he will be liable for all non compliances.
Q. Can a director be liable for non compliances even if
he is not authorized by the Board to file the annual return or
the balance sheet?
Ans. It is a question of law.
Q. Can you produce the relevant record in relation with
the previous filing of the company?
Ans. Yes, I can.
Q. At what address was the show cause notice sent by
you?
Ans. It is on record.
Q. Have you filed the delivery records of the speed post
receipts in respect of the show cause notice?
Ans. I have not filed the delivery records of the speed post
but if I am allowed, I can bring dispatch proof of the speed
post.
Q. Do you have any specific record to show the willful
default by Mr. Yogesh Gupta?
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Ans. Mr. Yogesh Gupta is a Director of the company and
he is very much liable for the annual filing of the company.
PW-1 denied the suggestion that Mr. Yogesh Gupta was not
liable for the non compliances or that case put up by him is
misconceived.
4.1.2 PW-1 deposed in his cross examination done by
accused No.2 Rajeev Behl as follows:
Q. Till what year has the accused company filing its
relevant records diligently with the ROC?
Ans. Upto financial year 2009, company has filed their
annual returns and balance sheets.
Q. Is it correct that the company has not filed annual
returns and balance sheets in the financial year 2010?
Ans. Yes, it is correct.
Q. Is it correct that the company had not filed annual
returns and balance sheet in the financial yer 2011?
Ans. Yes, it is correct.
Q. The present complaint pertains to which year?
Ans. The present complaint pertains to the financial year
2012 and all previous years default.
Q. Can you point out from your evidence as to where do
you state that the complaint is also regarding previous
years?
Ans. It is not written in my complaint. However, this fact
has been mentioned in show cause notice dated 09.05.2013
at point No.9.
Q. Have you filed any complaint with regard to the
previous years?
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Ans. Yes, it is correct we have not filed any complaint.
Q. Could you explain the reason as to why no complaint
was filed for the previous years by your department?
Ans. Non filing of annual returns and balance sheets is at
the continuous default as per the 1956 Act, so I filed
complaint for the financial year 2012.
Q. What date did you file the present complaint?
Ans. This complaint was filed on 27.09.2013.
Q. Please refer to Para 4 of your complaint. Can you
explain Section 220 (1) and Section 159 of the Companies
Act, 1956?
Ans. It is question of law.
Q. What was the last date to file relevant records with
the ROC for the financial year 2012?
Ans. There is no last date for filing annual returns and
balance sheets in ROC office as per Act.
Q. Please clarify the due date for filing relevant records
with the complainant for the financial year 2012?
Ans. Due date for the financial year 2012 for filing of
balance sheet and profit and loss is 29.10.2012 and for the
annual return 29.11.2012.
Q. Am I understand that this complaint was filed after
approximately 10 to 11 months of due date?
Ans. Yes. Vol. This offence is a continuous default and
complaint is filed within time.
PW-1 denied the suggestion that complaint is time barred or
that complaint was filed within time.
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Q. Have you filed any application for condonation of
delay till date?
Ans. No.
Q. Kindly explain the meaning of 'directors / officer in
default' as stated by you in your evidence?
Ans. In any company, there are different designation for
the directors like Managing Director, additional director,
manager when these all designations for filing of any
complaint called officer in default as per 156 Act. In this
company, all three directors are designated as Director so all
are officer in default as per 1956 Act.
Q. Am I to understand that if the company had a
managing director, then only the managing director would
be liable?
Ans. Yes, if any company has a managing director, he will
be the only officer in default of the company.
Q. Is it correct that a director automatically seizes to be a
director once he is declared 'director / officer in default'?
Ans. No.
Q. Is it your understanding that there was no limitation
period to file present complaint?
Ans. Yest. Non filing of balance sheet and annual return is
a continuous default so limitation act is not applicable.
Q. I am showing you the master data of S.S. Con Build
P. Ltd. as produced from the MCA Website. Is it your
understanding that this company is a defaulter?
Ans. This is not a certified copy, therefore, I can not
comment anything.
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Q. Can you confirm the abovementioned and return back
on the next date of hearing?
Ans. I Can not.
Q. Kindly point out the paragraph in your complaint or
evidence affidavit whereby you have stated that the
complaint is filed within limitation?
Ans. It is not mentioned in my complaint that complaint is
within limitation period. Vol. My complaint is filed for
continuous default so there is no need to mention limitation
period.
Q. Is it correct that the ROC is aware of Rajeev Behl
placing his resignation with Real Tech Construction Pvt.
Ltd. (RCPL)?
Ans. At the time of filing of complaint no form 32/DIR-12
filed by company regarding resignation of accused No.2.
Q. Is it correct that the registrar of companies on behalf
of ROC wrote a letter dated 30.07.2015 to RCPL seeking
explanation / clarification from the company within 10 days
of receipt of letter as to why Mr. Rajeev Behl's resignation
had not been filed?
Ans. I am not aware.
Q. Can you find out about the above mentioned
question?
Ans. Yes. I can.
Q. In case such letter was written by ROC, can you
produce the same on NDOH?
Ans. If letter is available in our record and sent to the
company, I can produce the same.
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Q. I put it to you that each time DIR-11, E form is
attempted to be filed by a company or director of defaulting
company an error occurs on the website stating that "the
company is a defaulting company as it has not filed due
balance sheet and annual returns". Hence, the company can
not file form?
Ans. I am not aware.
Q. Can you find out the same and revert back on
NDOH?
Ans. No.
Q. Is it correct that Rajeev Behl had written letters dated
06.05.2014, 07.08.2014 and 27.04.2016 to the ROC
informing about his resignation among other letters?
Ans. I am not aware.
Q. Can you find out the same the above mentioned and
revert back?
Ans. Letters are available on record, I can show it.
Q. Does a defaulter director automatically seized to be
director of a company?
Ans. No.
Q. As on date is the ROC aware of Rajeev Behl's
resignation?
Ans. I am not aware.
On 13.09.2018, PW-1 stated that he had brought letter dated
03.07.2015 issued by ROC, Delhi to the accused No.1
seeking explanation regarding the resignation of accused
No.2 and copy of reply dated 14.10.2015 of accused No.3
Yogesh Gupta being issued as ex-director of accused No.1.
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He stated that he was not aware whether any further penal
action was taken against accused No.1 or not and that as per
his knowledge, he was not aware whether an ex-director can
file a reply on behalf of company. Defence counsel for
accused No.2 has placed on record an internet generated
copy dated 12.09.2018 Ex. PW 1/D1 and put to PW-1 and
PW-1 admitted that directorship of accused No.2 was ended
on 02.01.2013, however, voluntarily stated that as per MCA
Portal, the accused No.2 uploaded DIR-11 in the month of
September, 2018 only. PW-1 denied the suggest that he
intentionally not filing the copy of letter dated 06.05.2014,
07.08.2014 and 27.04.2016 as same will absolve accused
No.2 from the offence alleged. PW-1 show his unawareness
regarding pendency of Writ Petition No.8493/2018 before
hon'ble High Court of Delhi in which Arbitration Award
dated 28.01.2018 was passed by hon'ble Justice (retired)
Sh. S.B. Sinha.
4.1.3 PW-1 deposed in his cross examination done by
accused No.1 and 4 Pankaj Dayal as follows:
PW-1 stated that he had filed this complaint on 27.09.2013
and accused No.4 was responsible for day to day affairs of
accused company till at the time of filing of complaint. PW-
1 deposed that he had filed this complaint for financial year
2012. It is submitted that company has not filed any balance
sheet and annual return for 2012, so he could not comment
when annual general meeting was held. That non filing of
balance sheet and annual return is continuous offence and
when this offence is came in his knowledge, he filed the
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present complaint. PW-1 stated that he did not remember
the date of certificate under Section 65B of Evidence Act
Ex. PW 1/4, however, he procured those documents from
the MCA Portal at the time of filing of complaint. PW-1
further deposed that according to provision of Section
220(1) and Section 159 of The Companies Act, 1956 the
Companies Act, 1956 the company and its directors are
under the statutory obligation to file with the Registrar of
Companies, balance sheet and profit and loss account and
prescribed form within 30 days of holding annual general
meeting and annual return in the prescribed form within 60
days of holding annual general meeting referred in Section
166 of the Companies Act, 1956. That he send the show
cause notice Ex. PW 1/5 to company and its directors
address given by them to ROC office. That company
address is D-22, Defence Colony, New Delhi and address of
accused No.4 B-179, Greater Kailash-I, New Delhi-110048.
PW-1 admitted that he had not attached any service proof of
show cause notice with the complaint and voluntary stated
that if court allow he can submit the dispatch proof of show
cause notice. PW-1 stated that accused No.4 is a director of
company so he is bound down to comply all provisions of
Companies Act, 1956 regarding filing of statutory returns
and he has not filed within the stipulated time. That after
filing of complaint company and accused No.4 has not filed
balance sheet and annual return till the date of filing of the
complaint which is statutory obligation of the company and
accused No.4 and it is very clear that they are willfully
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defaulting. PW-1 admitted that he had not any documentary
proof or information which states that accused No.4 is a
willful and knowing defaulter and that he was not aware of
any legal dispute between directors and share holders of the
company. PW-1 stated that he has not filed balance sheet
and annual return till today after filing of the complaint, so
company is willful defaulter and voluntary stated that if
court allow him he could bring the present status of filing of
the company. However, admitted that he he did not have
any documentary evidence to show the willfulness on the
part of the company in committing the default. That accused
No.4 is the director of the company so he is liable for filing
of annual return and balance sheet. Further stated that as per
law every director is liable for the acts of the company. PW-
1 denied the suggestion that in case of legal dispute between
the directors and shareholders the director can not be a
willful defaulter.
5 Statement of accused No.3 Yogesh Gupta u/s 313 Cr.P.C has been
recorded on 16.04.2019, accused No.2 Rajeev Behl under Section
313 Cr.P.C. has been recorded on 27.05.2019 and of accused No.4
Pankaj Dayal has been recorded on 10.10.2023. Accused No.2, 3
and 4 submitted that they wish to lead DE.
6 Accused in its defence evidence examined two witnesses as
under:-
6.1 DW-1 Yogesh Gupta/accused No.3 in his evidence stated
that he had resigned from the directorship of the company on
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21.09.2012 and his resignation was also accepted bythe Board
of Directors comprising of Mr. Pankaj Dayal and Mr. Vikram
Chadha. He deposed that he was not the director of company
since 21.09.2012 and in support of his deposition he filed copy
of his resignation dated 21.09.2012 Ex. DW 1/1. It is submitted
that Mr. Pankaj Dayal who was the main director incharge did
not file the requisite form with the ROC intimating his
resignation even after lapse of time. Therefore, DW-1 had sent
an e-mail dated 23.02.2013 Ex. DW 1/4 along with scan copy
of his resignation letter dated 21.09.2012, notice of board
meeting dated 11.09.2012 Ex. DW 1/2 and agenda of minutes
of meeting dated 11.09.2012 Ex. DW 1/3. DW-1 further stated
that he had also sent a letter dated 27.02.2013 Ex. DW 1/5
along with his resignation letter dated 21.09.2012, notice of
board meeting dated 11.09.2012, agenda of board meeting and
minutes of meeting held on 11.09.2012 with speed post No.
DE835446855IN dated 27.02.2013 Ex. DW 1/6. DW-1 stated
that he had received a show cause notice dated 09.05.2013
from the office of ROC and in response to the same DW-1 sent
letter dated 17.05.2013 Ex. DW 1/7 along with documents
listed in the said letter to the ROC by speed post No.
ED891672663IN dated 17.05.2013 Ex. DW 1/8. He deposed
that he was worried that his resignation was not uploaded,
therefore, he kept reminding Mr. Pankaj Dayal to file his
resignation, however, Mr. Pankaj Dayal expressed his inability
to file the balance sheet due to dispute with Sanjay Gupta,
Auditor of the company. Thereafter he enquired from his CA
and CS and everyone suggested to him that there is no
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mechanism intimating his resignation in 2012-13. thereafter, he
came to know that government has notified Form No. DIR-11,
whereby he was permitted to upload his resignation and then
he uploaded his resignation in Form No.11 on 18.08.2018 and
filed copy of internet generated Form-11 Ex. DW 1/9 (colly.)
and certificate in the form of affidavit under Section 65B of
The Indian Evidence Act, 173 Ex. DW 1/10 (however, same
was objected to by learned Company Prosecutor mode and
manner). He further stated that the present complaint is
pertains to financial year ended 31.03.2012 and he had
resigned from the directorship of company prior to dated
30.11.2012 of filing of balance sheet and annual returns of the
company and stated that complaint filed against him is false
and without considering the documents and facts of his
resignation available on the records of ROC in the form of e-
mail and speed post and further that he is innocent and entitled
to be discharged.
6.1.1 DW-1 during his cross examination witness admitted
that he had resigned from the directorship on 21.09.2012
and voluntarily stated that he was stopped doing anything
by other directors since about last two three years and he
was precluded from participating in every board meeting of
accused No.1 company for approximately two years
preceding the date of his resignation. DW-1 confronted with
e-form DIR-11 along with attachment tendered by the
witness Ex. DW 1/C1
Q. You were in attendance during the board meeting held
on 21.09.2012 wherein you were officiating as the director
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of accused No.1 company and were part of the quorum of
the board?
Ans. Yes. Vol. I had attended the meeting only for the
limited purpose of deliberating on my resignation that too
after numerous persuasion by me.
DW-1 in his cross stated that he was never served with the
notices convening any board meeting barring the above for
the last two years preceding his resignation. DW-1 was
asked that he was in receipt of the notices calling the board
meeting as he was in possession of the notice and the
agenda which was to be deliberated in the ensuing meeting
dated after confronting with document Ex. DW 1/3 to which
witness replied that particular meeting mentioned at x. DW
1/3 was in pursuance of a settlement agreement between the
directors inter-se whereby his resignation which was
already tendered was to be accepted by the board. It is
submitted that resignation mentioned at Ex. DW 1/3 was
tendered verbally to Pankaj Dayal approximately one year
prior to 04.04.2012. DW-1 admitted the suggestion given by
the learned Company Prosecutor that he along with accused
No.2 and 4 were the director and promoters of the accused
No.1 company and three of them held the entire share
capital of accused No.1 company in equal proportions i.e.
33.33%. DW-1 stated that he did not have the postal
receipts which were tendered by him and Ex. DW 1/6 and
Ex. DW 1/8. He further stated that resignation Ex. DW 1/1
was tendered to Pankaj Dayal and voluntary stated that his
resignation was accepted by Sh. Pankaj Dayal and Vikram
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Chadha. DW-1 stated that he did not know Vikram Chadha
personally and he was friend of Pankaj Dayal and he had
ratified the appointment of Vikram Chadha upon the
instructions of Mr. Pankaj Dayal during the board meeting
held on 21.09.2012. DW-1 further stated that resignation
was not sent to accused No.2. That DW-1 was not present
during the board meeting and at the time of cross he did not
even recall if he had sent his resignation to accused No.2 or
not. DW-1 denied the suggestion that he had never resigned
from the directorship in the accused No.1 company and his
resignation and the minutes of the board meeting re mere
fabrications to conceal his directorship in the accused No.1
company. It is further denied by DW-1 that his resignation
was ever tendered to the board of the company or that no
valid board meeting could have been held within such a
short span of time before the lapse of prescribed statutory
period and the entire meeting confirming his resignation is
fabrication and lies.
Cross examination done by learned defence counsel for
accused No.4 Pankaj Dayal:-
That Real Tech Construction Private Limited was registered
in D-22 Defence Colony. That building comprises five
floors, although the company was running on ly in
basement and ground floor. That the company was in
possession and running from his registered office till some
time in May-June 2011. That he did not remember after
May-June 2011 from where the company started its
operation and again said that perhaps the operation of the
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company started from D-28, 3rd Floor, Defence Colony
which was office of Mr. Pankaj Dayal. DW-1 stated that he
did not remember whether the operation of the company
was carried out from 9, Jasola, Copia and further stated that
he did not remember whether there was any understanding
that all the documents of the company will be kept to 9,
Jasola, Copia. DW-1 further stated that he did not remember
whether any of the document were kept in 9, Jasola, Copia
which belong to one company whose eventual beneficial
interest is with DW-1. That till the company was in
operation the bank operation of the company was being
done by all of the accused herein together till / before May
2011. That he did not have any documentary proof
regarding his verbal resignation tendered in the April / May
2011. DW-1 deposed that he had no documentary evidence
to show his intend and verbal resignation till the board
meeting of April 2012. That other than the agenda the
resignation letter 21.09.2012 has no endorsement to suggest
that the resignation was tendered to the board. DW-1 further
stated that he did not remember whether on 21.09.2012 Mr.
Vikram Chadha was already inducted as the Director of the
company or not by Mr. Pankaj Dayal. DW-1 stated that he
was holding 33.33% share of the company till the year
2012. That there is no written record that he requested the
other directors shreholders to fulfill the compliance of the
company and voluntary stated that he he had made such
request verbally. That dispute amongst the shareholders
started early however it was referred to the Arbitrator for
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peaceful resolution in regard to various companies. That he
did not remember the date when the arbitration proceedings
were started. That when the dispute started they stopped
working together for the company and the shareholders and
directors were only used to meet for peaceful resolutions.
DW-1 denied the suggestion that he had tendered his verbal
resignation to Pankaj Dayal. It is further denied that no
documentary evidence is to suggest that he had for all
practically purpose resigned from the directorship from
September 2012. DW-1 further denied the suggestion that as
per the understanding all the records and books of the
companies was taken to 9, Jasola, Copia. It is further denied
that after 2015, despite various requests from Pankaj Dayal,
DW-1 did not sign balance sheet and other compliances
documents and also denied that due to the disputes between
the shareholders the compliances were not completed in
time. It is further denied that thereafter the assets of the
present company came in the share of Pankaj Dayal and
therefore, he did not come forward to fulfill the obligations
and compliances of the company.
6.2 DW-2 Rajeev Behl/ accused No.2 stated that he was director
in the company from inception of the company on 01.09.2005
till 02.01.2013 and also 33% shareholder of the accused No.1
company. DW-2 stated that he had resigned from the accused
No.1 company on 02.01.2013 and copy of the letter dated
02.01.2013 addressed by him to the remaining accused along
with proof of delivery Ex. DW 2/A and also sent a letter dated
06.05.2014 to the ROC intimating them about his resignation
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and the fact that he had already addressed his resignation to the
other accused persons who were the directors of the company
and that in letter dated 06.05.2014 (Ex. DW 2/B) DW-2 stated
that ROC has no information about resignation and the other
directors of the company had deliberately concealed this fact
and never intimating the ROC about the same. That DW-2 had
also addressed a reminder letter dated 07.08.2014 Ex. DW 2/C
to the ROC on the same issue and express his apprehension
that his name was still reflecting as director of accused No.1
company and also informed the ROC vide the same letter that
he had tried to file duly filled Form DIR-11 as per the
Companies Act, 2013. along with requisite filing fee but the
same could not processed on account of the fact that accused
No.1 company had become defaulting company on account of
non filing of financial statements such as balance sheet and / or
annual return. DW-2 deposed that he also requested that his
resignation be taken on record. Further that DW-2 also filed a
complaint Ex. DW 2/D against the accused No.1 company with
the ROC thereby informing them about his resignation and the
lapse on the part of the other directors to intimate the fact of his
resignation and consequent non filing of requisite DIR-11.
That on the basis of his complaint the ROC issued a notice
dated 03.07.2015 Ex. DW 2/E to accused No.1 company on
account of withholding his resignation from the directorship of
accused No.1 company. That on account of dispute between
DW-2/accused No2, accused No.3 and 4 all three of them
parted ways and by way of executing a memorandum of
understanding dated 02.06.2011. That subsequently, certain
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disputes arose in connection with the aforesaid memorandum
of understanding dated 02.06.2011, which were referred to
arbitration. That on 13.07.2015, the hon'ble Arbitral Tribunal
was pleased to pass an order Mark DW 2/F thereby recording
their agreement i.e. the agreement of accused No.2 to 4, that
accused No.3 would be responsible for ensuring all the paper
works necessary for completing the requisite statutory
compliance of the accused No.1 company till the financial year
2014 and the same be made available to accused No.1 and
DW-2 within two weeks thereof. That again on 04.08.2015,
hon'ble Arbitral Tribunal was pleased to pass an order Mark
DW 2/G, thereby recording that so far as accused No.1
company was concerned accused No.3, 4 and DW-2/accused
No.2 agreed that accused No.3 shall taken all necessary steps
towards statutory compliance of the accused No.1 company
within a period of two weeks therefrom. That on account of
non filing of annual financial statements of accused No.1
company DW-2 had to incur disqualification under the
Companies Act accordingly, DW-2 had to prefer a writ petition
before the hon'ble High Court of Delhi being WP(C)
8493/2018 seeking relief against the aforesaid disqualification.
That after considering the submissions advanced on his behalf
the hon'ble High Court vide order dated 14.08.2018 Mark DW
2/H revived the digital signature and DIN number of the
petitioner forthwith. DW-2 further deposed that hon'ble
Arbitral Tribunal, vide its award dated 28.01.2018 Mark
DW2/I held that undoubtedly the accused No.1 company fell to
the share of the accused No.3 herein. That the said award also
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records a settlement between the accused No.3 and
DW-2/accused No.2 whereby accused No.3 has categorically
agreed to comply with all statutory requirements qua accused
No.1 company under the Companies Act. That the award was
challenged by accused No.3 before the hon'ble High Court of
Delhi in OMP (Comm.) 449/2018 in the matter "Pankaj Dayal
vs. Yogesh Gupta & Anr." That vide order dated 29.10.2018
Mark DW 2/J, the hon'ble High Court upheld the award,
including as modified between the accused No.3 and
DW-2/accused No.2 and that there was no illegality in the
impugned award dated 28.01.2018 which would thus operate
and legally bind the parties. That DW-2 requested that on the
last date of hearing, during recording of his evidence at certain
places in his deposition he had inadvertently mentioned
accused No.3 which is to be read as accused No.4. That on
13.07.2015 the hon'ble Arbitral Tribunal was pleased to pass
an order thereby recording of their agreement i.e. agreement of
accused No.2 to 4 that accused No.4 Pankaj Dayal would be
responsible for ensuring all the paper works necessary for
completing the requisite statutory compliance of accused No.1
company till the financial year 2014 and the same be made
available to accused No.3 and DW-2/accused No.2 within two
weeks thereof. That on 04.08.2015, the hon'ble Arbitral
Tribunal was pleased to pass an order, thereby recording that so
far as accused No.1 company was concerned, accused No.3, 4
and DW-2/accused No.2 agreed that accused No.4 Pankaj
Dayal shall take all necessary steps towards statutory
compliance of accused No.1 company within a period of two
CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
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weeks therefrom. That hon'ble Arbitral Tribunal vide its award
dated 28.01.2018, held that undoubtedly the accused No.1
company feel to the share of the accused No.4 Mr. Pankaj
Dayal herein. Further the said award also records a settlement
between the accused No.1 and DW-2/accused No.2, whereby
accused No.4 has categorically agreed to comply with all
statutory requirements qua the accused No.1 company under
the Companies Act. That award was challenged by accused
No.4 before the hon'ble Delhi High Court in OMP (Comm.)
449/2018 in the matter Pankaj Dayal vs. Yogesh Gupta & Anr..
That vide order dated 29.10.2018, the hon'ble High Court
upheld the award, including as modified between the accused
No.4 Mr. Pankaj Dayal and accused No.2/DW-2 and that there
was no illegality in the impugned award dated 28.01.2018
which would thus operate and legally bind the parties.
6.2.1 During cross examination DW-2 admitted that the
arbitration award as well as the copy of letter written to
ROC and the High Court's orders marked as Mark DW 2/E,
DW 2/F, DW 2/G, DW 2/H and DW 2/J are all photocopies
and none of them are original or certified copies and denied
the suggestion that he was deposing falsely.
6.3 DW-2 Rajeev Behl further examined in chief after his
application under Section 311 Cr.P.C. (moved on 15.02.2024)
was allowed on 08.04.2024. DW-2 brought a copy of screeshot
Ex. DW 2/K demonstrating the error on the online portal of
MCA, when he tried to upload DIR-11 Form. Copy of letter
dated 04.03.2015 addressed by him to the office of
complainant along with original speed post receipt Ex. DW
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2/L. Copy of Form DIR-11 dated 06.09.2018 uploaded by DW-
2 on MCA Portal Ex. DW 2/M, copy of Form DIR-12 dated
05.03.2020 uploaded on behalf of accused No.1 company on
online portal of MCA Ex. DW 2/N, master data of accused
No.1 as on 28.03.2023 and master data as on December 2020
Ex. DW 2/O (colly.), certificate cum affidavit under Section
65B of Indian Evidence Act Ex. DW 2/P.
6.3.1 DW-2 denied the suggestion that there was no online
error in MCA Portal due to which forms were not filed or
that screen shot Ex. DW 2/K shows the defaulter status of
company. DW-2 stated that he had filed his resignation on
02.01.2013 and that it is matter of record when he had filed
DIR-11 and deposed voluntarily that same is filed in his
examination in chief. That DW-2 did not remember the date
/ year of DIR-11 form was filed. Form DIR-12 was filed by
the company and DW-2 did not remember under whose
signature the same was filed on MCA Portal. DW-2
admitted that he was the Director and officer in default
during the period when the complaint was filed by the
department, however, in voluntarily stated that on
02.06.2011, between the three shareholders and directors an
MoU was signed in which the liability of Income Tax and
ROC compliances was to be done by Sh. Pankaj Dayal
which was further upheld in an arbitration award by Sh.
Jusitce S.B. Sinha which was challenged in Section 34
whereas the order was passed that award has claimed
finality and the liability of compliance is of Sh. Pankaj
Dayal. Post our MoU dated 02.06.2011 DW-2/accused No.2
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had made various requests by various means to reach out to
Sh. Pankaj Dayal to file the returns as he was responsible.
DW2 has replied some specific questions as follows:
Q. I put it to you that as per MCA Portal you had filed
Form DIR-11 for your resignation on 06.09.2018. What do
you have to say?
Ans. It is a matter of record.
Q. I put it to you that as per MCA Portal the Form DIR-
12 for your resignation was filed on 05.03.2020. What do
you have to say?
Ans. It is a matter of record.
DW-2 had shown one computer generated document
allegedly showing (at the portal of MCA) the details of
filing of different forms by accused No.1 company and has
been asked that at point A, the date of filing of DIR-11 by
witness is correct and at point B the date of filing of DIR-12
by accused No.2 is correct.
After perusal of the document Ex. DW 2/C1, witness has
stated that it is matter of record.
It is denied by witness that date of filing of DIR-11 and
DIR-12 mentioned in his examination in chief is incorrect
as same did not telly with the date of filing these forms on
MCA Portal and also denied that he had filed resignation
after filing of present complaint in back date. It is wrong to
suggest that I am deposing falsely.
Cross by learned defence counsel for accused No.4:
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Q. Whether a common office and common staff was
maintained in pursuance of terms of MoU dated
02.06.2011?
Ans. It was maintained till the time Yogesh Gupta and me
were paying the salary / expenses of common office and
common staff. Pankaj Dayal had stopped paying for salaries
of common staff.
DW-2 denied the suggestion that he had replied wrongly to
the above question and the default was only from the side of
Yogesh Gupta and him and further that he was deposing
falsely.
7 Number of adjournments were sought on behalf of accused no.4
for leading defence evidence, however, defence evidence was not
led by accused no.4 on one or another ground. Even when matter
was being fixed for final arguments, no request has been made on
behalf of accused no.4 to lead defence evidence.
8 I have heard the arguments and perused the record including
written submissions.
9 Before proceeding ahead, it is beneficial to refer to provisions of
Companies Act, 1956, which are required to be considered for just
decision of this case.
Section 159
Annual return to be made by company having a share capital -
(1) Every company having a share capital shall, within
[sixty] days from the day on which each of the annual
general meetings referred to in section 166 is held, prepare
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and file with the Registrar a return containing the
particulars specified in Part I of Schedule V, as they stood
on that day, regarding-
(a) its registered office,
(b) the register of its members,
(c) the register of its debenture holders,
(d) its shares and debentures,
(e) its indebtedness,
(f) its members and debenture holders, past and present,
and
(g) its Directors, Managing Directors, [* * *] [Managers
and Secretaries] past and present:
[Provided that if [any of the five] immediately preceding
returns has given as at the date of the annual general
meeting with reference to which it was submitted the full
particulars required as to past and present members and the
shares held and transferred by them, the return in question
may contain only such of the particulars as relate to persons
ceasing to be or becoming members since that date and to
shares transferred since that date or to changes as compared
with that date in the number or shares held by a member.
Explanation .-Any reference in this section or in section
160 or 161 or in any other section or in Schedule V to the
day on which an annual general meeting is held or to the
date of the annual general meeting shall, where the annual
general meeting for any year has not been held, be
construed as a reference to the latest day on or before
which that meeting should have been held in accordance
with the provisions of this Act.]
(2) The said return shall be in the form set out in Part II of
Schedule V or as near thereto as circumstances admit [and
where the return is filed even though the annual general
meeting has not been held on or before the latest day by
which it should have been held in accordance with the
provisions of this Act, company shall file with the return a
statement specifying the reasons for not holding the annual
general meeting] :
Provided that where the company has converted any of its
shares into stock and given notice of the conversion to the
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Registrar, the list referred to in paragraph 5 of Part I of
Schedule V shall state the amount of stock held by each of
the members concerned instead of the shares so converted
previously held by him.
Section 162 :
Penalty and interpretation -
(1) If a company fails to comply with any of the provisions
contained in section 159, 160 or 161, the company, and
every officer of the company who is in default, shall be
punishable with fine which may extend to [five
hundred rupees] for every day during which the
default continues.
(2) For the purposes of this section and sections 159, 160
and 161, the expressions "officer" and "Director" shall
include any person in accordance with whose directions or
instructions the Board of Directors of the company is
accustomed to act.
Section 166 in The Companies Act, 1956
Annual general meeting .-
(1) Every company shall in each year hold in addition to
any other meetings a general meeting as its annual general
meeting and shall specify the meeting as such in the notice
calling it; and not more than fifteen months shall elapse
between the date of one annual general meeting of a
company and that of the next:
Provided that a company may hold its first annual general
meeting within a period of not more than eighteen months
from the date of its incorporation; and if such general
meeting is held within that period, it shall not be necessary
for the company to hold any annual general meeting in the
year of its incorporation or in the following year:
Provided further that the Registrar may, for any special
reason, extend the time within which any annual general
meeting (not being the first annual general meeting) shall
be held, by a period not exceeding three months.]
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(2) Every annual general meeting shall be called for a time
during business hours, on a day that is not a public holiday,
and shall be held either at the registered office of the
company or at some other place within the city, town or
village in which the registered office of the company is
situate [* * *]:
[Provided that the Central Government may exempt any
class of companies from the provisions of this sub-section
subject to such conditions as it may impose:
Provided further that-
(a) a public company or a private company which is a
subsidiary of a public company, may by its articles fix the
time for its annual general meetings and may also by a
resolution passed in one annual general meeting fix the
time for its subsequent annual general meetings; and
(b) a private company which is not a subsidiary of a public
company, may in like manner and also by a resolution
agreed to by all the members thereof, fix the time as well as
the place for its annual general meeting.]
Section 220 of the Companies Act, 1956 :
Three copies of balance sheet etc. to be filed with Registrar
-
After the balance sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar [within thirty days from the date on which the balance sheet and the profit and loss account were so laid] [or where the annual general meeting of a company for any year has not been held, there shall be filed with the Registrar within thirty days from the latest day on or before which that meeting should have been held in accordance with the provisions of this Act,] -
(a) [* * *] [a copy] of the balance sheet and the profit and loss account, signed by the Managing Director, [* * *] manager, or secretary of the company, or if there be none of these, by a Director of the company, together with [a CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
31 of 42 copy] of all documents which are required by this Act to be annexed or attached to such balance sheet or profit and loss account:
[Provided that in the case of a private company, copies of the balance sheet and copies of profit and loss account shall be filed with the Registrar separately:] [* * *] Provided further that,-
(i) in the case of a private company which is not a subsidiary of a public company, or
(ii) in the case of a private company of which the entire paid-up share capital is held by one or more bodies corporate incorporated outside India, or
(iii) in the case of a company which becomes a public company by virtue of section 43-A, if the Central Government directs that it is not in the public interest that any person other than a member of the company shall be entitled to inspect, or obtain [copy] of, the profit and loss account of the company, no person other than a member of the company concerned shall be entitled to inspect, or obtain [copy] of, the profit and loss account of that company under section 610.] (2) If the annual general meeting of a [* * *] company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, [or is adjourned without adopting the balance sheet,] [, or, if the annual general meeting of a company for any year has not been held,] a statement of that fact and of the reasons therefore shall be annexed to the balance sheet [* * *] required to be filed with the Registrar. (3) If default is made in complying with the requirements of sub-sections (1) and (2), the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by section 162 for a default in complying with the provisions of sections 159, 160 or 161.
CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
32 of 42 10 During final arguments, it is submitted by Ld. Company Prosecutor that as per section 159 r/w 220 (1) of the Companies Act, 1956, the accused no.1 company and its directors were required to file three copies of balance sheet and profit & loss account within 30 days of AGM and copy of annual return within 60 days of AGM for the year ended on 31.03.2012. It is submitted for the financial year ended on 31.03.2012, the AGM was to be held not later than on 30.09.2012. It is submitted that accused no.2 to 4 have not filed copies of balance sheet, profit & loss statement and annual return and are accordingly liable to be convicted for offence u/s 220/162 of the Companies Act, 1956 for contravention of section 220/159 of the Companies Act, 1956. It is submitted that the evidence relied upon by the complainant is mostly document, for the proof of which, the complainant has examined its witness PW1 Sh. Rajneesh Kumar Singh, the then DROC, who had proved PW1/1 Certificate of Incorporation, PW1/2 basic company data of the company, ExPW1/3 register of directors, managing directors, manager and secretary etc. of accused no.1 company maintained with MCA portal, ExPW1/4 certificate u/s 65B of the Indian Evidence Act and Ex.PW1/5 show cause notice dated 09.05.2013 issued to the company and its directors. It is submitted that section 220/162 of the Companies Act, 1956 does not admit any exception, accordingly accused should not be heard regarding the circumstances due to which they could not file the balance sheet, profit & loss statement and annual return of accused no.1 company for financial year 2011-2012. A request has been made to convict and punish the accused accordingly.
CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
33 of 42 11 Ld. counsel for accused no.2 has submitted that balance sheet, profit & loss statement and annual return for financial year 2011-2012 could not be filed on behalf of accused no.1 as there was inter-se dispute between the directors of accused no.1 company i.e. accused no.2, 3 & 4. It is submitted that to resolve this dispute, the accused persons have entered into an agreement/MOU dt.02.06.2011, as per which accused no.4 in the present case namely Mr. Pankaj Dayal was duty bound to do all the compliances related to RCPL. It is submitted that accused no.3 & 4 to control of RCPL and they were the persons managing the RCPL. It is submitted that MOU dt.02.06.2011 was challenged in arbitration, whereby vide order dt.04.08.2015, it was adjudicated that as in so far as M/s RCPL is concerned, accused no.4 shall take all steps necessary towards statutory compliances. It is submitted that in final award dt.28.01.2018, exhibited as ExDW2/1, it was affirmed that accused no.4 agreed to keep accused no.2 indemnified and absolved from all liabilities related to compliances in the RCPL. It was noted that accused no.4 undertakes to do all the compliances as per order dt.04.08.2015 passed by Ld. Arbitrary Tribunal. It is submitted that the said award was challenged by accused no.4 before Hon'ble High Court of Delhi, however, vide order dt.29.10.2018 (ExDW2/J), the Hon'ble High Court of Delhi has dismissed the application challenging the arbitral award dt.28.01.2018 and the same has attained finality. It is submitted that due to the above said dispute, the accused no.3 has resigned from the directorship if accused no.1 on 02.01.2013 and has written various letters / emails to ROC CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
34 of 42 intimating about the tending of his resignation from the directorship of accused no.1 company. It is submitted that accused no.2 had tried to upload his DIR-11, however, same could not be uploaded as accused no.1 company was being shown as in default. Ld. counsel has relied on the case of National Small Industries Corp. Ltd. vs. Harmeet Singh Paintal (2010) 3 SCC 330, Muncipal Corporation of Delhi vs Ram Kishan Rohotagi & Ors. (1983) 1 SCC 1 and J. S. Gambhir vs Millennium Health Institute and Diagnostics Pvt. Ltd. (2014) 3 Comp LJ 120(Del.) to support the submissions advanced by him.
12 Ld. counsel for accused no.3 has vehemently submitted that balance sheet, profit & loss statement and annual return for financial year 2011-2012 could not be filed on behalf of accused no.1 as there was inter-se dispute between the directors of accused no.1 company i.e. accused no.2, 3 & 4. It is submitted that to resolve this dispute, the accused persons have entered into an agreement/MOU dt.02.06.2011, as per which accused no.4 in the present case namely Mr. Pankaj Dayal was duty bound to do all the compliances related to RCPL. It is submitted that due to the dispute between the directors of accused no.1 company, the accused no.3 has resigned from the directorship of accused no.1 company on 21.09.2012. It is submitted that as per the provisions of Companies Act, the liability u/s 220/162 of the Companies Act arises against the persons who were director in the company on the date of AGM and continue to be same after that. It is submitted that when accused no.3 was not the director in the accused no.1 company on the last date of holding AGM, he cannot be held liable under the provisions of 220/162 of the Companies CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
35 of 42 Act, 1956. It is submitted that resignation submitted by accused no.3 to the board of accused no.1 was duly accepted by the board of accused no.1 company on 21.09.2012, however, the same was not uploaded on the website of ROC by the officers of accused no.1 company, after he has resigned from the directorship of accused no.1 company, despite repeated requests made by him. It is submitted that he had informed the ROC about the fact of his resigning from the directorship of accused no.1 company by several letters and emails filed by him during his defence evidence. It is submitted that on getting aware that same can be uploaded by him also, under the provisions of Companies Act, 2013, he had filed his DIR -11 and the same has been accepted by ROC.
13 It is submitted on behalf of accused no.4 that balance sheet, profit & loss statement and annual return for financial year 2011- 2012 could not be filed on behalf of accused no.1 as there was inter-se dispute between the directors of accused no.1 company i.e. accused no.2, 3 & 4. It is submitted that balance sheet, profit & loss statement and annual return, could not be filed on behalf of accused no.1 company as due to lack of cooperation of the other directors, the AGM could not be convened.
14 From the consideration of arguments and from perusal of record including written submissions, it can be noted that the fact that the balance sheet, profit & loss statement and annual return of accused no.1 company was not filed for financial year 2011- 2012 is not in dispute among the parties. The directors of accused CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
36 of 42 no.1 company i.e. accused no.2 to 4 have taken their different and distinct stands for not filing the balance sheet, profit & loss statement and annual return of accused no.1 company and sought their acquittal in the present case.
(i) Liability of accused no.2 Mr. Rajeev Behl :
The defence of accused no.2 was that there was a dispute among the shareholders and directors of accused no.1 company and to resolve the dispute a MOU dt. 02.06.2011 was signed by the directors of the accused no.1 company. It is submitted that with regard to dispute and MOU, arbitral proceedings were started wherein vide final award dt.28.01.2018, it was noted that accused no.4 agreed to keep accused no.2 indemnified and absolved from all liabilities related to compliances in the RCPL. It is submitted on behalf of accused no.2 that accused no.4 has undertaken to do all the compliances as per order dt.04.08.2015 passed by the Arbitral Tribunal. It is submitted that as petition challenging the award dt.28.01.2018 has been dismissed by Hon'ble High Court of Delhi, the award has attained the finality. Further, it is submitted on behalf of accused no.2 that accused no.2 had resigned from the directorship of accused no.1 company on 02.01.2013. It is submitted that as accused no.4 was to complete all the formalities with regard to compliances to be made under Companies Act 1956 and he was considered to be person responsible for the affairs of accused no.1 company, there cannot be any liability of accused no.2. Reliance has also been placed on procedural order dt.13.07.2015, whereby it has been mentioned at page no.3 that accused no.4 would be responsible for all the paper works necessary for completing the requisite statutory CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
37 of 42 compliances till the financial year and in 2014 is prepared and same be made available to accused no.2 & 3.
The court is of considered opinion that arbitration proceedings and an order of Arbitral Tribunal relied upon by accused no.2 pertains to a date subsequent to filing of present complaint i.e. 27.09.2013. With regard to the observation of Appellate Tribunal regarding the responsibility of accused no.4 of statutory compliance, it is required to be noted that same has arisen only from the date of order of Arbitral Tribunal. On the relevant date when the compliances under the Companies Act, 1956 was to be made, there was no such direction for accused no.4 as relied on behalf of accused no.2. Nothing has been brought to the notice of court that on the date of default, it was the responsibility of accused no.4 to make the necessary compliances. It has not been pointed out on behalf of accused no.2 that accused no.4 was managing director of accused no.1 company at the time of default during the evidence or during final arguments. With regard to resignation of accused no.2, it has been rightly pointed out by Ld. Prosecutor that even if the version of accused no.2 is believed that he has resigned from the directorship of accused no.2 on 02.01.2013, the same does not absolve him from responsibility of holding AGM on 30.09.2012 and filing of balance sheet and profit & loss statement on 30.10.2012 and filing of annual return on 30.11.2012. As accused no.3 has allegedly tendered his resignation on 02.03.2013, the fact of resignation does not absolve him from his position of "officer who is in default" in company i.e accused no.1 as per section 5 of Companies Act, 1956.
CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
38 of 42 On the basis of above discussion, accused no.2 is not absolved from his responsibility of holding AGM on 30.09.2012 and filing of balance sheet and profit & loss statement on 30.10.2012 and filing of annual return on 30.11.2012 due to passing of arbitration award providing responsibility of accused no.4 to make compliances qua accused no.1 nor due to resignation of accused no.2 from the directorship of accused no.1 company from 02.01.2013.
(ii) Responsibility of accused no.3:
The main defence of accused no.3 in the case at hand is that due to the dispute between the directors of accused no.1 company, he had tendered his resignation to the board of directors, which was accepted on 21.09.2012. It is submitted that the liability / duty to hold AGM and subsequent compliances arise on 30.09.2012 and afterwards. It is submitted that as accused no.3 has resigned before 30.09.2012, he cannot be held responsible for non compliances resulted after the date of his resignation i.e. 21.09.2012.
Though Ld. Prosecutor has opposed the submissions raised on behalf of accused no.3 on the ground that the resignation of accused no.3 could not be intimated to ROC before 18.08.2018 and which makes accused no.3 equally liable for non compliances on behalf of accused no.1, however, the cross examination of CW1 and examination of accused no.3 as DW1 suggest some other picture. In the cross examination of CW1 by the accused no.3, when a specific question was put that accused no.3 was not under an obligation to file the annual returns in terms of resolution of the company, CW1 has deposed that he is not aware. When CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
39 of 42 another question was put that accused no.3 was not authorised by the board to file the annual return or balance sheet, CW1 has again deposed that he is not aware. Accused no.3 when deposed as DW1, he had proved his resignation dt.21.09.2012, notice of board meeting dt.11.09.2012 and agenda of meeting dt.21.09.2012. In fact, a suggestion was given to accused no.3 that he had resigned from the directorship of accused no.1 on 21.09.2012 on behalf of complainant, which was duly admitted by the accused no.3. It was deposed by DW1 during his cross examination that he had tendered his oral resignation to accused no.4 even one year prior to 04.04.2012, however, accused was not cross examined on this point by the complainant. DW1 / accused no.3 was cross examined by accused no.4, however, there was no question or suggestion with regard to tendering / non tendering of resignation by accused no.3 to accused no.4 in September 2012.
From the relevant portion of cross examination of CW1 and DW1, there is no doubt that the resignation of accused no.2 was accepted by the board of directors of accused no.1 company on 21.09.2012. There is no doubt that no liability arises on 21.09.2012 or before that for not filing the balance sheet, annual returns and profit & loss statement for the FY 2011-2012. It is also important to point out that Ld. Counsel for accused no.3 vehemently submitted that it was remaining directors of accused no.1 company to upload the resignation of accused no.3 on the website of ROC after 21.09.2012, however, same was not done by them for the malicious reasons. Ld. Company Prosecutor has not disputed either during evidence or during final arguments about the receiving of registered post / email regarding the resignation of CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
40 of 42 accused no.3 from the directorship of accused no.1. It is submitted by Ld. Counsel for accused no.3 that by any means it was not possible for accused no.3 to upload his resignation on the website of ROC under the provisions of Companies Act, 1956. It is submitted that when it was found by accused no.3 that he can upload his resignation to the website of ROC under the provisions of Companies Act, 2013, he has uploaded the same. Ld. Company Prosecutor had fairly conceded during the final arguments that under the provisions of the Companies Act, 1956, only the remaining directors could have uploaded the resignation of accused no.3 on the website of ROC, however, under the provisions of Companies Act, 2013, the resignation can be uploaded by either the retired director himself or it can be uploaded by the remaining directors through DIR-11 / DIR-12.
On the basis of above discussion, court finds that accused no.3 has resigned from the directorship of accused no.1 company on 21.09.2012. The non uploading of the information about the resignation of accused no.3 does not vitiate the resignation of accused no.3 as it was not within the control of accused no.3 to upload his resignation on the website of ROC at the time of his resignation. Once it is held that the accused no.3 has resigned on 21.09.2012, he cannot be considered to be liable u/s 220/162 of Companies Act, 1956 as the liability under the said provision of law arise after the date of resignation.
(iii) Liability of accused no.4:
The Ld. Counsel for accused no.4 has also cited the same reason of dispute among directors for non filing of balance sheet, profit & loss statement and annual returns. Ld. Counsel for CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
41 of 42 accused no.4 has also submitted that as the assets of accused no.1 company had fall in the shares of accused no.4, accused no.2 & 3 did not come forward to cooperate in filing of balance sheet, profit & loss statement and annual returns.
As far as the liability of accused no.4 for the same, it is important to refer to the cross examination of CW1 by Ld. Counsel for accused no.1 & 4. During his cross examination by Ld. Counsel for accused no.1 & 4, CW1 has categorically stated that accused no.4 was responsible for day to day affairs of accused company till at the time of filing of complaint. However, CW1 was not cross examined or suggested otherwise on behalf of accused no.4 in this regard. Both accused no.2 & 3, apart from complainant has testified about the responsibility of accused no.4 for the compliances under the provisions of Companies Act, 1956 for the functioning of accused no.1, neither accused no.4 has brought any evidence to prove that accused no.4 was not responsible for the same nor any substantial arguments has been raised during final arguments.
(iv) Liability of accused no.1 :
Accused no.1 was proceeded in absentia vide order dated 16.04.2014. However, as far as the liability of accused no.1 for the alleged default is concerned, it is to be noted that there is not doubt or dispute that for non filing of balance sheet, profit & loss statement and annual returns for financial year 2011-2012, accused no.1 is liable to be convicted and punished.
15 On the basis of above discussion, accused no.1, 2 & 4 are CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.
42 of 42 convicted for offence u/s 220/162 of Companies Act, 1956. For reasons stated above, accused no.3 is acquitted for offence u/s 220/162 of Companies Act, 1956.
Digitally signed by MAYANK MAYANK MITTAL MITTAL Date:
Announced in the open court 2024.09.30
17:28:48
on this 30.09.2024 +0530
MAYANK MITTAL
ACJM (Spl. Acts), CENTRAL
TIS HAZARI COURTS, DELHI
CC No.521945/2016 ROC v. M/s Real Tech Construction Pvt. Ltd.