Patna High Court
Arun Kumar Agarwala And Ors vs The Union Of India Through The Registrar ... on 20 September, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.67225 of 2018
Arising Out of PS. Case No.-65 Year-2011 Thana- GOVERNMENT OFFICIAL COMP.
District- Patna
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1. Arun Kumar Agarwala Son of Ram Niwas Agarwala
2. Binod Kumar Agarwala Son of Bishwanath Agarwala
3. Shiv Kumar Agarwala Son of Bhagwan Das Agarwala
All directors of Company namely Satyam Ferro Tech Limited Liquidated
now merged in Shivam Iron and Steel Company Ltd. having it's registered at
20 B, Abdul Hamid Street, 7th Floor, Kolkata,West Bengal - 700069
... ... Petitioner/s
Versus
The Union of India through The Registrar of Companies Bihar and Jharkhand
having its office at Maurya Lok Complex, 4 th Floor, 'A' Block, Dak Bunglow
Road, Patna 800001
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate
Mr. Atal Bihari Pandey, Advocate
Mr. Alok Kumar Jha, Advocate
Mr. Mukund Kumar, Advocate
For the Opposite Party/s : Mr. Anshay Bahadur Mathur, C.G.C.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL JUDGMENT
Date : 20-09-2023
Heard learned counsel for the petitioners and learned
counsel appearing for the Union of India.
2. The present application has been filed seeking
quashing of the order dated 27.04.2011 in Complaint Case No.
65(C) of 2011 passed by the learned Special Court, Economic
Offences, Patna whereby cognizance has been taken of the
offences under Sections 159 and 162(1) of the Companies Act,
1956 against the petitioners.
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3. Learned counsel for the petitioner submits that from
submissions made hereinafter, it would manifest that the said
complaint case was instituted maliciously by the Registrar of the
Companies. It is further submitted that the Registrar despite being
aware of the entire fact that the Company in question had already
merged with another Company which had sanction of the Hon'ble
Jharkhand High Court still proceeded to institute the present
complaint. It is next submitted that opposite party filed a
complaint against the petitioners before the learned Special Court,
Economic Offences, Patna under Sections 159 and 162(1) of the
Companies Act, 1956 alleging therein that the petitioners have not
filed the balance sheet and profit and loss account of the Company
for the year 2009-2010 before the office of the Registrar of the
Companies, Bihar and Jharkhand, Patna. It is also submitted that in
pursuance of the aforesaid complaint, cognizance came to be
taken. It is further submitted that the Company in question in the
present complaint is M/s Satyam Ferro Tech Limited bearing
Registration No. 03-9902 having its registered office at Giridih,
Jharkhand. It is next submitted that petitioners also are Directors
of one another Company, namely, Shivam Iron and Steel Company
Limited having its registered office at Kolkata, West Bengal. It is
also submitted that the accused Company was not operative for
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last several years and thus the petitioners felt the need of merging
the accused Company with the Company, namely, Shivam Iron and
Steel Company Limited. It is further submitted that after observing
all the formalities a company petition under the Companies Act,
1956 being Company Petition No. 03 of 2008 was filed before the
Hon'ble Jharkhand High Court at Ranchi under Sections 391(1)
and 394 of the Companies Act, 1956. It is next submitted that the
complainant was also furnished a copy of the said petition filed
before the Hon'ble Jharkhand High Court in connection with
amalgamation of the accused Company with Shivam Iron and
Steel Company Limited vide letter dated 05.02.2009, as would be
evident from Annexure-2 to this application. It is also submitted
that the complainant also gave his no objection to the dissolution
of the accused Company in course of its merger with Shivam Iron
and Steel Company Limited thereafter the Hon'ble Jharkhand
High Court vide order dated 28.08.2009 allowed the Company
Petition No. 03 of 2008 and sanctioned the scheme of merger
w.e.f. 01.04.2007.
4. Learned counsel for the petitioner submits that in
view of the facts recorded hereinabove it becomes clear that the
complaint petition itself was baseless and misconceived for the
reason that the accused Company had the sanction of the Hon'ble
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Jharkhand High Court to be merged with Shivam Iron and Steel
Company Limited after no objection was given by the
complainant. Further, the order by the Hon'ble Jharkhand High
Court dated 28.08.2009 was also passed in presence of the
complainant.
5. Learned counsel for the petitioner submits that
Section 581 ZN(11) of the Companies Act provides that once the
assets and liabilities of a company are transferred in accordance
with the provisions of sub-section (9) or where there is merger
under sub-section (2) the registration of the merging company
would stand cancelled and that the company shall be deemed to
have been dissolved and cease to exist forthwith, as such, what is
not disputed rather stands admitted is that the accused Company
cease to exist from the date of the order dated 28.08.2009 passed
by the Hon'ble Jharkhand High Court in Company Petition No. 03
of 2014 and the merger was approved w.e.f. 01.04.2007, as such,
the actual effect of such order would be the cessation of the
existence of the accused Company w.e.f. 01.04.2007 itself as such
there was absolutely no obligation on part of the Director of the
accused Company to file annual return, balance sheet and profit
and loss account with the opposite party i.e. the complainant for
the financial year ending on 31.03.2010.
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6. Learned counsel for the petitioner submits that the
complainant had also issued notice dated 11.03.2010 upon the
petitioners seeking explanation regarding non-compliance of the
requirements of Sections 159, 160, 166, 210 and 220 of the
Companies Act, 1956. The said notice was responded by letter
dated 13.03.2010 (Annexure-4 to this application) wherein it was
made clear that pursuance to order dated 28.08.2009 the accused
Company had already merged with the aforesaid Company w.e.f.
01.04.2007and accordingly, a declaration to that effect was already filed vide Form No. 21 on 23.09.2009. It was also made clear that on account of merger the balance sheet and profit and loss account for the year ending 31.03.2009 also stood merged and was, accordingly, filed in the office of the complainant but the complainant took no steps against the petitioners for the financial year ending 31.03.2009 i.e. financial year 2008-09.
7. Learned counsel for the petitioner further submits that Shivam Iron and Steel Company Limited for the financial year ending on 31.03.2010 has already filed the annual returns, balance sheet and profit and loss account after the accused Company merged with the aforesaid Company. Learned counsel for the petitioner thus submits that the complaint itself was misconceived and the cognizance came to be taken in a mechanical manner.
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8. Learned counsel appearing for the Union of India is not in a position to rebut the factual submissions made by the learned counsel for the petitioners.
9. In view of the submissions recorded hereinabove and the fact that the accused Company had already merged with Shivam Iron and Steel Company Limited as aforesaid and thus ceased to exist w.e.f. 01.04.2007 or at least from the date of order of the Hon'ble Jharkhand High Court in Company Petition No. 03 of 2008, there was absolutely no liability of the accused Company to file its return in terms of Sections 159 and 162 of the Companies Act, 1956. Thus, the order dated 27.04.2011 in Complaint Case No. 65(C) of 2011 passed by the learned Special Court, Economic Offences, Patna whereby cognizance has been taken of the offences under Sections 159 and 162(1) of the Companies Act, 1956 against the petitioners is hereby quashed.
10. Accordingly, this application is allowed.
(Satyavrat Verma, J) Kundan/-
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