Delhi District Court
Roc vs . Nidhi Khurana & Ors. on 30 October, 2018
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDL. CHIEF METROPOLITAN MAGISTRATES (Spl. Acts): CENTRAL
TIS HAZARI COURTS, DELHI
CC No. 511545/16
ROC Vs. Nidhi Khurana & Ors.
JUDGMENT
(a)Name of complainant : Registrar of Companies through Sh. P.L. Malik Deputy Registrar of Companies, NCT of Delhi & Haryana
(b)Name, parentage, residence: 1. Nidhi Khurana of accused (i) G-96, Ashok Vihar, Phase-I, Block-G, New Delhi-110052.
(ii) J-238/9A, Sainik Farms, New Delhi-110062
2. Sunil Khurana
(i) G-96, Ashok Vihar, Phase-I, Block-G, New Delhi-110052.
(ii) J-238/9A, Sainik Farms, New Delhi-110062
3. Renu Khurana
(i) G-96, Ashok Vihar, Phase-I, Block-G, New Delhi-110052.
(ii) J-238/9A, Sainik Farms,
New Delhi-110062
(c)Offence complained of/ proved : U/s 628 of Companies
Act, 1956
(d)Plea of accused : Pleaded not guilty
ROC vs Nidhi Khurana CC No. 511545/16 1 of 11
(e)Final order : Acquitted
(f)Date of such order : 30.10.2018
Date of institution : 18.11.2014
Arguments heard : 23.10.2018
Date of Judgment : 30.10.2018
Brief statement of the reasons for the decision:-
1 The complainant Sh. P.L. Malik, the then Deputy Registrar of Companies NCT of Delhi & Haryana filed the present complaint against the above accused persons for contravention of Section 628 of the Act.
2 The brief facts, as stated in the complaint, are that the company M/s RSM Dyechem Pvt Ltd. is duly incorporated under the companies act with the office of ROC, Delhi and Haryana and accused being the directors/officers are responsible for managing day to day affairs of the company and compliances of the Companies Act, 1956. It is alleged that the office of ROC received complaint against company and its directors and accordingly the office of ROC conducted the technical scrutiny of balance sheet and other records of the company u/s 234 of the Companies Act, 1956. The office of ROC issued an order u/s 234(1) of the Companies Act, 1956 for furnishing the information followed by an order u/s 234(3A) of the Companies Act, 1956 which was replied by the company. During the course of the technical scrutiny it was observed by the officer that the ROC vs Nidhi Khurana CC No. 511545/16 2 of 11 directors of the company have knowingly and willingly given false information and misleading information in Form-32 and DIN application of accused no. 1, 2 & 3 with regard to their permanent and present address at G-96, G Block, Ashok Vihar-
1, Delhi-52 and as per complaint of Pradeep Kumar whereby he has alleged that the house in question is in name of one Dev Raj and who is not in the parentage of the directors and the house is inhabitable. It is alleged that when the accused persons were issued a showcause notice, they replied giving false and misleading information and on the spot verification conducted by the official of the ROC, the house was found to be under construction. Hence, the present complaint.
3 Accused were summoned for the said offence. After appearance, copy of complaint and documents were supplied. Notice U/s 251 Cr.P.C. was framed against all the accused for the offence punishable u/s 628 of the Act to which they pleaded not guilty and claimed trial.
4 In order to substantiate the allegations, prosecution examined Sh. P.L. Malik as CW-1 who deposed that he worked with Ministry of Corporate Affairs for 37 years and retired as Dy. ROC, Delhi & Haryana on 31.01.2015. He deposed that M/s RSM Dyechem Pvt. Ltd. is a company registered with the office of ROC, Delhi & Haryana and proved copy of its incorporation as Ex. CW-1/1, the copy of basic company data as Ex. CW-1/2, the register of directors maintained with MCA Portal as Ex. CW-
ROC vs Nidhi Khurana CC No. 511545/16 3 of 11 1/3 in respect to proof of directorship of accused. He further relied upon certificate U/s 65-B as Ex. CW-1/4. He further stated that the complainant has conducted technical scrutiny of the said company of balance sheet, profit & loss account and other documents U/s 234 of the Companies Act and issued an order U/s 234(1) of the Companies Act to the accused which is Ex. CW-1/5. He further deposed that thereafter an order U/s 234(3A) of Companies Act 1956 was issued to the accused which is Ex. CW-1/6 to which the company replied vide letter dt. 01.04.2013 Ex. CW-1/7. He further stated that during the course of technical scrutiny, it was observed that the the directors of the company have knowingly and willingly give false information and misleading information in Form 32 and DIN application of accused no. 1,2&3 with regard to their permanent and present address at G-96, G Block, Ashok Vihar-I, Delhi and replied upon DIN application of the accused Ex. CW- 1/8, the complaint received from Sh. Pradeep Kumar is Ex. CW- 1/9. He further stated that the complainant Sh. Pradeep Kumar alleged that the house at Ashok Vihar is inhabitable and on verification by the official of ROC, it was reported that the house was under construction and nobody is living there, the said verification report is Ex. CW-1/10. He further stated that the company filed its report Ex. CW-1/11 to Regional Director and the Regional Director directed the office of ROC to issue showcause notice U/s 628 of the Companies Act vide letter Ex. CW-1/12, He further stated that a showcause notice Ex. CW- 1/13 was issued to the accused persons. He further relied upon ROC vs Nidhi Khurana CC No. 511545/16 4 of 11 report of ROC submitted to Regional Director Ex. CW-1/14, letter Ex. CW-1/14 and letter of Regional Director directing the office of ROC for further action to be taken Ex. CW-1/15 and another report submitted by ROC to the Regional Direction Ex. CW-1/16. He further stated that the Regional Director directed the office of ROC to file the prosecution vide letter Ex. CW-1/17 and CW-1 filed the present complaint Ex. CW-1/18. During cross-examination he admitted that death certificate of Sh. Gopi Krishan Khurana showed his residential address as G-96, Phase-I, Ashok Vihar who is father of accused Sunil Khurana. He also admitted that none of the provisions of Companies Act deals with issue of ownership of residence of the directors. He also admitted that copies of documents of accused Sunil Khurana which are part of Ex. CW-1/7 shows his residential address as G-96, Phase-I, Ashok Vihar. He also admitted that driving licence and passport of accused Nidhi Khurana, voter ID and ration card of accused Renu Khurana and other documents of Sunil Khurana and Sunny Khurana shows their address as G-96, Phase-I, Ashok Vihar. CW-1 admitted that he has not personally visited the premises in question and failed to confirm that report filed by Hukum Singh is correct or not. He also admitted that there is no written order in the Court file to show that Hukum Singh visited the premises in question, but denied the suggestion that Hukum Singh never visited the premises in question. He also admitted that apart from the RTI reply dt. 14.03.13, there is no document to show that property in question does not belong to Dev Raj. He also admitted that ROC vs Nidhi Khurana CC No. 511545/16 5 of 11 as per document at page no. 52 which is part of Ex. CW-1/9 the property in question is assessed in the name of Sh. Dev Raj.
5 CW-2 Sh. Manmohan Juneja stated that he has sent a report dt. 15.05.13 Ex. CW-1/11 addressed to Regional Director on examination of complaint filed by Sh. Pradeep Kumar and on examination of the documents filed with the ROC. He further stated that the company was called upon to give further information and explanation but the company failed to file the reply and accordingly a report was sent to the Regional Director stating that false and misleading information was given in the forms and for necessary sanction for action U/s 628 of the Companies Act.
During cross-examination, CW-2 stated that he is not aware whether mutation is proof of ownership. He also admitted that he is not the competent authority to give sanction for filing of the complaint. He further stated that he do not remember the particulars of addresses given in annexure page no. 19 to 41 of Ex. CW-1/7. He also stated that he cannot state whether the enclosure to the replies are correct or not and has not called the originals for verification as the copies were already attested by the directors of the company. He denied the suggestion that ROC does not have the power to visit the residential addresses of the company or the director for verification. He denied the suggestion that Ex. CW-1/10 was prepared by Hukum Singh in the office itself and he had not visited the premises. He admitted that the addresses of directors to be filed with ROC ROC vs Nidhi Khurana CC No. 511545/16 6 of 11 must be correct on the date of filing of the documents. He also admitted that as per Companies Act, there is no restriction that a person cannot live at two places. He denied the suggestion that information given by accused persons in the forms filed with the ROC is correct. He denied the suggestion that Ex. CW- 1/11 is false and he is deposing falsely.
6 Thereafter, statement of all accused were recorded U/s 313 Cr.P.C. wherein they denied the allegations. Thereafter an application was moved on behalf of accused persons with respect to question no. 20 of their statement and it was stated that late Sh. Devraj is the real brother of late Mr. Gopi Krishan Khurana and thus Mr. Devraj is the ancestor of Mr. Sunil Khurana and that G-96, Ashok Vihar, Phase-I, New Delhi was purchased by late Gopi Krishan Khurana and late Sh. Desraj Khurana in 1970. All decisions of the company RSM Dyechem Pvt. Ltd. Is taken by Mr. Manu Khurana and they follow his direction.
7 I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and gone through the relevant records. I have also considered the relevant provisions of law.
8 Ld. Company prosecutor argued that the case of the prosecution has been proved beyond reasonable doubt in view of the testimony of the witnesses. Therefore, accused may be ROC vs Nidhi Khurana CC No. 511545/16 7 of 11 convicted for the alleged offence.
9 On the other hand Ld. Counsel for accused argued that in view of the admissions of CW-1 of the correctness of address of the accused person and non examination of Hukum Singh as well as Pradeep Kumar, the complainant failed to prove the allegations. He further pointed out that the complainant has not filed copy of Form-32 and DIN application and prays for acquittal.
10 Relevant provisions of section 628 of the Act is reproduced below:-
628. Penalty for false statements. - If in any return, report, certificate, balance sheet, prospectus, statement or other document required by or for the purpose of any of the provisions of this Act, any person makes a statement-
(a) which is false in any material particular, knowing it to be false; or
(b) which omits any material fact knowing it to be material, he shall, save as otherwise expressly provided in this Act, be punishable with imprisonment for a term which may extend to two years and shall also be liable to fine.
11 Whether complainant has proved that the accused persons knowingly and willfully submitted false information: As per Ex. CW-1/3, the Register of Directors etc. the date of appointment of accused persons as Director is 24.01.07 showing their address as G-96, G Block, Ashok Vihar, Phase-I, Delhi-52 which implies that the said address was furnished by the accused persons on 24.01.07 itself. CW-1 ROC vs Nidhi Khurana CC No. 511545/16 8 of 11 admitted all the documents of accused persons showing the above address. The documents on record some of which were issued in the year 1995 like voter ID card and driving licence of the accused persons. The LIC policies are issued in the year 2001. The death certificate of Sh. Gopi Krishan Khurana is dated 10.08.90. By no stretch of imagination it can be inferred that all these documents are forged and fabricated documents prepared by the accused persons to save themselves from the present prosecution which was filed on 18.11.14.
12 Moreover, the complainant for the reasons best known, has neither examined Pradeep Kumar who allegedly has filed the complaint with the office of complainant claiming that the house in question is in the name of Dev Raj and who is not in the parentage of the accused persons. The accused persons have given a detailed reply to the showcause notice giving multiple proofs showing their residence at the said address. The annexure-I which is a comparative table giving the details of the complaint against the company and directors, their reply as well as comments of the office of ROC has very conveniently negated the documents filed by the accused persons and relied upon only on the report of spot inspection conducted by one Hukum Singh, UDC. The complainant has also not examined the said Hukum Singh and also not annexed the alleged photographs of the under construction premises. On the other hand, accused persons have annexed copies of the photographs which were taken in the year 2001 & 2005 ROC vs Nidhi Khurana CC No. 511545/16 9 of 11 showing the built up premises and various ceremonies being conducted in the said premises.
13 CW-2 admitted that he cannot comment upon the correctness of the report prepared by Hukum Singh.
14 I find force in the argument of Ld. Counsel for accused persons that at the time of alleged visit by Hukum Singh, the house was under renovation and at no time the accused persons have vacated the premises. Moreover, complainant has failed to bring on record any rules/orders to show that the Directors are personally liable alongwith the company if they temporarily shift their residence. The thirst of the complaint is that the house is in the name of Sh. Dev Raj who is not in the parentage of the accused persons is also negated as admittedly, in document at page no. 34 which is the mutation letter issued by MCD of the property in question, the name of Late Sh. Dev Raj as well as late Sh. Gopi Krishan who is the father of accused Sunil Khurana is reflected. This shows that the accused persons are in possession of the property in question having their residence.
15 In view of the above discussion and evidence on record, I am satisfied that the complainant has failed to prove the allegations of false statement against the accused persons.
16 Accordingly, I am satisfied that complainant has failed ROC vs Nidhi Khurana CC No. 511545/16 10 of 11 to prove the allegations against the accused beyond reasonable doubt. Hence, accused Nidhi Khurana, Sunil Khurana and Renu Khurana are acquitted of allegation leveled against them. Bail bond stands cancelled. Surety is discharged.
17 Copy of the judgment be given free of cost to the accused. File be consigned to Record Room.
18 The soft copy of the judgment be uploaded on the server with digital signature.
Digitally signed PAWAN by PAWAN
SINGH SINGH RAJAWAT
Date: 2018.10.31
RAJAWAT 16:32:59 +0530
(PAWAN SINGH RAJAWAT)
ACMM(Special Acts) CENTRAL
TIS HAZARI COURTS DELHI
Announced in open
Court on 30th October, 2018.
ROC vs Nidhi Khurana CC No. 511545/16 11 of 11