Delhi District Court
Roc vs Ms Ambe Organic Food Products Pvt Ltd on 15 October, 2024
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IN THE COURT OF SH. MAYANK MITTAL
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts)
CENTRAL, TIS HAZARI COURTS, DELHI
ROC Vs. M/s Ambe Organic Foods Products Pvt. Ltd.
CC No. : 536012-2016
CNR No. : DLCT02-011987-2015
Date of Institution : 08.09.2015
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 Ambe Organic Food
his parentage and address etc. Products Ptivate Limited, U-190,
Street No.4, Shakarpur, New Delhi
- 110092.
(ii) Niranjan Mittal.
207, First Floor, Sec - 5, Vaishali,
Ghaziabad, Uttar Pradesh-201010
(iii) Harsh Pal Singh
SF-1, Plot No.172, Sec - 4,
Vaishali, Ghaziabad,
Uttar Pradesh-201010
Offence complained of : U/s. 220(3)/162/168 of The
Companies Act, 1956.
Date of Judgment : 15.10.2024
Plea of accused : Not guilty
Final Judgment : Convicted
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
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Brief facts and reasons for decision of the case:-
1. The facts of the case of complainant is that M/s Ambe Organic
Food Products Private Limited was incorporated on 15.06.2009 vide
CIN No.U01400DL2009PTC191220 as a Private company under the
Companies Act, 1956 and having its Regd. Office at U-190, street no.4,
Shakarpur, New Delhi-110092. That accused no.1 as name above is the
Company and accused no. 2 & 3 as named above is the directors/officers
of the company and responsible for compliance of the provisions of the
Companies Act, 1956 as such officers are in default under section 5 of
the Companies Act, 1956. (Copy of Directorship is annexed as Annexure
II). That according to the provisions of section 220(1) and section 159 of
the Companies Act. 1956, the company and its directors are under the
statutory obligation to file with the Registrar of Companies three copies
of the Balance Sheet and Profit and 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 years ended 31.03.2009,
31.03.2010, 31.03.2011, 31.03.2012 & 31.03.2013 were required to
place Balance Sheet and Profit and Loss Account in the Annual General
Meeting by a date not later than, 30.09.2009, 30.09.2010 30.09.2011,
30.09.2012, 30.09.2013, i.e. within six months of the close of the
Financial years. Balance Sheet and Profit and Loss Account was further
required to be filed with the complainant on or before 30.10.2009,
30.10.2010, 30.10.2011, 30.10.2012 & 30.10.2013 and the Annual
Return made up to that date should have been filed with the complainant
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
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on or before 30.11.2009, 30.11.2010. 30.11.2011. 30.11.2012,
29.11.2013 i.e. 60 days of holding AGM. That the accused company
have not filed the Balance Sheet, Profit & loss Account and Annual
Return and holding of annual general meeting for the financial years as
at 31.03.2009, 31.03.2010, 31.03.2011, 31.03.2012 & 31.03.2013 before
the complainant despite the issue of Show Cause Notice to the company
and directors/officers and as such each of the above named accused are
knowingly and willfully guilty of the contravention of section 220(1),
159 and Section 166 as such punishable under section 220(3),162 and
168 of the Companies Act, 1956 for default. That the contravention
under Section 220 & Section 159 of the Companies Act 1956 and the
accused herein are punishable with fine of Rs.500/- per day from the
date of start of each default in regard to the non-filing of the relevant
balance sheet under Section 220(3)/162 and Annual Return under
Section 159 of the Companies Act, 1956. The Balance Sheet and Annual
Return of the Company for the financial year mentioned above has not
been filed within stipulated period as per the provision of the Companies
Act. The Complaint is not barred by the limitation as per Section 468 of
the Cr. P.C as because the offence are continuing one.
2. The present complaint was filed by Sh. Rajneesh Kumar Singh,
the then Assistant Registrar of Companies, NCT of Delhi & Haryana, 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. Cognizance of
offence was taken and the accused were summoned vide order dated
08.09.2015. On appearance, copies were supplied to the accused persons.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
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Notice of accusation u/s 251 Cr.P.C was served upon the accused no.1, 2
and 3 on 02.08.2017 to which they pleaded not guilty and claimed trial.
3. Thereafter, the complainant was given opportunity to examine its
witnesses to substantiate the allegations made against the accused
persons. The complainant examined Sh. Arun Kumar Singh as CW1.
3.1 He stated that he has been working with Ministry of
Corporate Affairs since June 2001 and he has been working with the
office of complainant since 14.05.2019 and also he is looking after the
work of legal sanction in the office of the complainant. That he is
deposing on behalf of Sh. Rajneesh Kumar Singh, the then AROC with
the office of complainant and he has been authorized to depose on behalf
of Sh. Rajneesh Kumar Singh vide office order dated 02.08.2019 and he
has brought the copy of the same, which is exhibited as Ex. CW-1/A.
That M/s Ambe Organic Foods Products Pvt Ltd registered with the
office of complainant in the year 2009. That the certified copy of master
data of the company is also filed today and the same is exhibited as Ex.
CW-1/1. That the basic company data of the company is also attached
with the complaint and the same is marked as Mark A. That the accused
No.2 and 3 are the Director(s) and Officer(s) of the company i.e accused
no.1. That the certified copy of signatory information of accused no.1 is
exhibited as Ex.CW-1/2 and the same is also attached with the complaint
as Mark B. That he has brought the present status of the company i.e
certified basic company data and the same is exhibited as Ex.CW-1/3.
That the showcause notice was issued by Mr. Rajneesh Kumar Singh
before launching of the said prosecution in the year 2015 for non-filing
of the annual return, profit and loss account and for non-holding of the
annual general meeting for the financial year 31.03.2009 to 31.03.2013.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
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That the said showcause notice is attached with the complaint and the
same is marked as Mark C. That the certificate u/s 65 B of Indian
Evidence Act signed by Sh. Rajneesh Kumar Singh is also attached with
the complaint which is Ex. CW-1/4 and after that the present case was
filed by Sh. Rajneesh Kumar Singh before this Hon'ble Court. That the
said complaint petition is exhibited as Ex. CW-1/5 signed by Sh.
Rajneesh Kumar Singh at point A and B. That he can identify the
signature of Sh. Rajneesh Kumar Singh as he has seen official document
bearing his signature which is being received in the office of
complainant in the usual course of business.
3.1.1 During his cross examination, he stated that he is posted as
AROC with the complainant department. He further stated that the status
of the accused no.1 at the time of filing of the complaint was 'active' and
he does not know the present status of the accused no.1 as on today but
he can find out and he will be able to depose about the same. That his
official duties as the AROC of the complainant department includes
drafting, filing complaints, petition etc. on behalf of the complainant,
issuance of certified true copies of documents as filed by the
companies /LLPs from the record from the ROC, NCT of Delhi &
Haryana, approval and scrutiny of e-forms and appearing as witness to
depose on behalf of the complainant/ROC alongwith other work
assigned by the ROC, NCT of Delhi & Haryana, from time to time. That
he is not aware that the accused no. 3 has filed the writ petition no.
10726/2017 pending before the Hon. High Court of Delhi on the same
matter wherein ROC is one of the respondent. That he is not aware of
any dissolution notice dated 11.01.2016 u/s 560(5) of The Companies Act, 1956, issued by the complainant department qua the accused no. 1 company. That he will have to verify the factum of dissolution from our CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 6 of 25 record and he will also have to verify the authenticity of the notice from our records. That Sh. Niranjan Mittal is accused No.2 in the matter and the name of Sh. Niranjan Mittal is not mentioned in the body of the complaint except in the memo of parties. That the master data Mark A does not contain the name of Sh. Niranjan Mittal and the name of Sh. Niranjan Mittal was taken from Mark B i.e. signatory details of M/s. Ambe Organic Food Products Private Limited. That it is not necessary that authorized signatory has to be a Director of the company and he voluntarily stated that it can also be an officer of the company. That is not necessary that only the Directors are made parties for the company's default in filing the financial statements and he voluntarily stated that even officers are made party on behalf of the defaulting company. That Under Section 5 of The Companies Act, 1956 even an officer of the company can be made an accused for default committed by company and every officer which is covered in definition of 'Officer in default' can be made a party for default by company. That the contents of Mark CW 1/B are correct and he has verified Mark CW I/B but he has not filed any document qua the verification done by me. He denied that Sh. Niranjan Mittal was never a Director of accused No.1.
4. Upon conclusion of complainant's evidence, statement of all the accused persons u/s 313 Cr.P.C was recorded on 20.02.2024. That the accused persons stated that they wish to lead DE.
5. Accused no.1 & 3 examined DW1 Sh. Harsh Pal Singh in his defence and he stated that he is accused no.3 in the present matter and also representing accused no.1 company. He further stated that the accused no.1 company incorporated in the name and style of M/s. Ambe CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 7 of 25 Organic Foods Products Private Limited on 15.06.2009 and photocopy of incorporation certificate is Ex. DW 1/1. He further stated that he and accused no.2 Niranjan Mittal were the Directors and promoters of accused no.1 company and each was holding 50% equity stake and the authorized shared capital was of Rs.10,00,000/-. He stated that the accused no.1 could not start any operation since the date of incorporation nor opened any bank account. He stated that no transactions have ever taken place since the inception of the accused no.1 company. He stated that accused no.3 tried to communicate with accused no.2 in matter of starting of operation of accused no.1 company and he tried his level best but could not get any kind of co-operation from accused No.2, due to which the accused No.1 could not get its PAN, TAN allotted and no bank account could get opened since there were only two directors and no operation were feasible with one director. He stated that he again approached accused No.2 for co-operation but he did not respond. He further stated that thereafter, the accused no.1 company again called the board meeting on 15.01.2015 where the board appointed Mrs. Beena Singh as the Additional Director and unanimously passed the resolution for vacation of office of accused no.2 for not attending board meeting for more than one year and the copy of DIR 12 for appointment Mrs. Beena Singh as an Additional Director is Ex. DW 1/2. He stated that the accused no.1 company duly called another board meeting on 14.03.2015 for the purpose of striking off the name of the accused no.1 company under easy exit route since the company had neither started any operation since the date of incorporation nor opened any bank account and copy of board resolution dated 14.03.2015 is Ex. DW 1/3. He stated that he had received the show cause notice dated 18.05.2015 on 27.05.2015 pertaining to the default under section 159/166/210(3)/220 of CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 8 of 25 The Companies Act, 1956 in M/s. Ambe Organic Food Products Pvt. Ltd. U-190, Street No.4, Shakarpur, New Delhi. He further stated that he has received a show cause notice dated 18.05.2015 on 27.05.2015 pertaining to default under Section 159/166/210(3)/220 of The Companies Act, 1956 from office of Registrar of Companies which he had duly replied and sent through speed post and the said notice, reply and speed post receipt are collectively Ex.DW1/4. He stated that in his reply, he stated that since the company is defunct, the management has already decided to strike off the name of the company in the Board Meeting held on 14.03.2015 and thereafter, he proceeded with the filing of Form Fast Track Exit (FTE) and the same was filed on 13.08.2015, copy of Form FTE is now Ex. DW 1/5. He stated that the office of ROC approved the Form FTE on 08.09.2015 and issued a notice under Section 560(3) of The Companies Act 1956 dated 08.09.2015 and said notice is Ex. DW 1/6. He stated that during the pendency of the own going complaint before the court office of ROC issued notice dated 11.01.2016 under Section 560(5) of The Act stating that the name of M/s. Ambe Organic Foods Pvt. Ltd. i.e. accused no.1 has this day been struck off from the register and the said company is dissolved and the said notice dated 11.01.2016 is Ex. DW 1/7. He stated that the Ministry of Corporate Affairs issued a general circular No.36/2011 dated 07.06.2011 prescribing the guidelines for FTE mode for defunct companies and said circular is Ex. DW 1/8. He further stated that accused No.1 company was strike off by virtue of notice dated 11.01.2016, but presently the accused no.1 company is shown as active on the website of Ministry of Corporate Affairs through a form of change request format along with Master Data filed by office of ROC and same is Ex. DW 1/9 (colly.). He further stated that in support of his electronic evidence, he furnished CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 9 of 25 certificate under Section 65B of The Indian Evidence Act, same is Ex. DW 1/10 bearing my signature at point A and B. 5.1 During his cross examination, he stated that he can not say whether after incorporation of the company the financial statements of the company were required to be filed on the MCA Portal as per the Companies Act. He voluntarily stated that the company was never functional and no account was opened. He stated that he can not say whether despite not having company's bank account, the liabilities of Companies Act with regard to filing of Balance Sheet, Profit & Loss Account and Annual Return were to be fulfilled are not. He stated that he does not remember whether any Form 32 in respect of appointment of Mrs. Beena Singh was filed or not. He stated that does not remember whether minutes of meeting dated 15.01.2015 and 14.03.2015 were prepared or not. He stated that he does not remember my date of appointment as Director in the present company. He further stated that the Form FTE Ex. DW1/5 was filed under his digital signature on MCA Portal. He further stated that he has no idea about whether the notification was made in the gazette of India regarding striking of the name of the company. He denied the suggestion that the name of the company never strike off unless and until notification regarding the same is published in official gazette. He stated that he can not say that the name of the company was not strike off because there is already a prosecution pending before this court. He denied the suggestion that due to inadvertence notice under 560(5) of The Companies Act, 1956 was issued, however, publication in the official gazette which is mandatory requirement of Section 560(5) of The Act was never made. He stated that he can not say that change request form under the signature of D. Bandopadhya, the then ROC, NCT of Delhi & Haryana was issued in CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 10 of 25 which the factum of inadvertent action of 560(5) of The Act was recorded and consequent to that CRF Ex. DW 1/9. He stated that the master data of the company was updated and the status of the company 'was changed to ACTIVE'.
5.2 Accused no.2 examined himself DW2 Sh. Niranjan Mittal in his defence and he stated that in 2007 Mr. Harshpal Singh and his wife Ms. Beena Singh incorporated a company in the name of M/s. Ambe Phytoextracts Pvt. Ltd. and they were the promoter of the company and he was appointed as the auditor of the company and in 2009 Mr. Harshpal Singh wants to incorporate another company and his wife was out of town and he requested me to join as director in new company i.e. Ambe Organic Food Products Pvt. Ltd. and considering our relationship he accepted his request and was appointed as the director, but he resigned within 1-2 days after arrival of his wife. He further stated that this new company i.e. Ambe Organic Food Products Pvt. Ltd. was registered at his office address i.e. U-190, Street No.4, Shakarpur, New Delhi-110092 and that Sh. Harshpal did not send him any notice for AGM and board of directors meetings from the date of incorporation of Ambe Organic Food Products Pvt. Ltd. to till date. He stated that from 2009 to 2013, he was reminding him so many times regarding filing of statutory documents / papers of the newly incorporated company and his resignation which he had already given to him. Sh. Harshpal Singh has stated that as he had already resigned from Ambe Organic Food Products Pvt. Ltd. he need not to bother and he will file the same with the office of ROC and he on his wording and did not make any enquiry regarding submission of his resignation with the office of ROC. He further stated that in 2013, their relation going to bitter due to his outstanding fees and non compliance of audit queries and matter went before the Regional CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 11 of 25 Director for resignation as auditor of M/s. Ambe Phytoextracts Pvt. Ltd. He stated that during his written submission to the RD office, Sh. Harshpal Singh agree that he appointed me as director in M/s. Ambe Organic Food Products Pvt. Ltd. in the absence of his wife for 1-2 days only. The letter dated 03.10.2013 received by him from the office of RD is marked as Mark A (running into 14 pages) (objected to as to mode of proof). He stated that the reply dated 26.11.2013 sent by him in response to the said letter of RD is Mark B (running into 6 pages) (objected to as to mode of proof). He stated that he came to know about the present matter when he received warrants from this court and that he has not received any letter / notice from the office of ROC also with regard to the present matter. He further stated that he has no fault and he has been falsely implicated in the present matter. He further stated that Sh. Harshpal Singh had cheated me as he had not submitted his resignation before the ROC intentionally and indulge him in this proceeding, even his name is not in a master data of Ambe Organic as director. He stated that further, the ROC has falsely implead him as accused in the present matter.
5.2.1 During his cross examination, he stated that he had no relation with accused no.1 company in the year 2013 and he was not aware about its state of affairs whatsoever. He further stated that he had never participated in the board meetings of accused no.1 company. He stated that it is correct that he was completely unaware about the accused no.1 company post his resignation. He further stated that he does not remember the exact date of resignation or the exact date when he tendered his resignation to accused no.1 company. He stated that he had tendered the resignation personally to accused no.3 at his office address situated at 101, 1st Floor, 48, Hasanpur, I.P. Extension, Patparganj-
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 12 of 25 110092. He further stated that the resignation was tendered sometime in June 2009. He stated that it is correct that he had reminded accused No.3 to file statutory returns. He voluntarily stated that the reminders pertained to filing of his resignation with the office of ROC only. He denied the suggestion that he had resigned from the board of accused no.1 company in the year 2015. He stated that it is correct that the resignation was not tendered at the registered office of accused no.1 company, but personally to accused no.3 at his Patparganj address. He stated that he did not receive any acknowledgment from accused no.3 with respect to receipt of his resignation and the resignation was hand written by him. He stated that the resignation was addressed to the board of directors of accused no.1 company. He stated that it is correct that post his resignation the accused no.1 company only had one director on its board. He stated that he does not know whether the board of accused no.1 company was reduced to only one director or not. He voluntarily stated that it was told by accused no.3 that he would soon appoint his wife on the board of the company basis which he had tendered his resignation and the wife of accused no.3 Ms. Beena Singh was shortly appointed to the board as a director sometime in June 2009. He denied the suggestion that he is falsely deposing as to the factum of his resignation. He denied the suggestion that his resignation took effect from 15.01.2015 as was shown in the signatory details Mark B as well as e-Form DIR-12 exhibited as DW 1/2. He denied the suggestion that he is fabricating facts only to evade his liability as a director and officer who is in default of the company. He stated that he had expended somewhere around Rs.50,000/- in incorporation of accused no.1 company and in fact, the entire incorporation cost of accused no.1 company was borne by him. He stated that he held 50% of the entire shareholding of accused CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 13 of 25 no.1 company and he did not receive the notice calling the Board Meeting dated 14.03.2015. He stated that he had relinquished his shareholding in accused no.1 company within two days of its incorporation in favour of Ms. Beena Singh. He stated that he does not know to whom the shares were transferred as he had only signed on blank transfer deed on which the details of transferee were kept blank. He stated that he was the statutory auditor of company M/s. Ambe Phytoextracts Pvt. Ltd. and the Ambe Phytoextracts Pvt. Ltd. was a company the promoter of whom were accused no.3 and his wife. He stated that he was the statutory auditor of Ambe Phytoextracts Pvt. Ltd. from the date of its incorporation which was sometime in year 2007 uptill the date of his removal which was sometime in year 2012. He stated that it is correct that he is a qualified CA but he does not know the documents required for incorporation of a company. He denied the suggestion that he had never compromised on his independence as statutory auditor of Ambe Phytoextracts Pvt. Ltd. even after he had incorporated the accused no.1 company. He denied the suggestion that the story of his resignation is a fabricated after thought.
5.3 Accused examined DW3 Mohan Singh Kataria in his defence and he stated that he is currently posted in the office of RD (NR) and have been authorized to bring on record following documents :-
1. The order dated 31.10.2014 passed by the RD (NR) Ex. DW 3/1 (colly.) (running into four pages).
2. The e-Form 24A, challan and attachments thereto filed by M/s.
Ambe Phytoextracts Private Limited for removal of auditor is Ex. DW 3/2 (colly.) (running into eight pages).
As per record of RD no other order passed by the RD is available on the record.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 14 of 25 His cross examination was nil, however, opportunity was given. DE stands closed on 08.08.2024.
6. I have heard the arguments and perused the record including written submissions.
7. 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.
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 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.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 15 of 25 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 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 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 CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 16 of 25 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 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 CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 17 of 25 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. Section 560 of the Companies Act, 1956:
560. Power of Registrar to strike defunct company off register .-
(1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation.
(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not received to the second letter within one month from the date thereof, a notice will be published in the Official Gazette with a view to striking the name of the company off the register. (3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved. (4) If, in any case where a company is being wound-
up, the Registrar has reasonable cause to believe either that no Liquidator is acting, or that the affairs of the company have been completely wound-up, and any returns required to be made by the Liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the Liquidator, if any, a like notice as is provided in sub-section (3).
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 18 of 25 (5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved:Provided that-
(a) the liability, if any, of every Director, [* * *] manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and
(b) nothing in this sub-section shall affect the power of the [Tribunal] [ Substituted by Act 11 of 2003, Section 114, for " Court" .] to wind-up a company the name of which has been struck off the register. (6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the [Tribunal] [ Substituted by Act 11 of 2003, Section 114, for " Court" .], on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register; and the [Tribunal] [ Substituted by Act 11 of 2003, Section 114, for " Court" .] may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.
(7) Upon a certified copy of the order under sub- section (6) being delivered to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off.
(8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or if no office has been registered, to the care of some Director, [* * *] [The words "
managing agent, secretaries and treasures " omitted by Act 53 of 2000, Section 212 (w.e.f.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
19 of 25 13.12.2000. ] manager or other officer of the company, or if there is no Director, [* * *] [[ The words " managing agent, secretaries and treasurers"
omitted by Act 53 of 2000.Section 212 (w.e.f. 13.12.2000).]] manager or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.
(9) A notice to be sent under this section to a Liquidator may be addressed to the Liquidator at his last known place of business.
8. 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 from the date of end of financial year 2009-10 to 2012-2013. It is submitted that for the above financial year accused persons 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 documentary, for the proof of which, the complainant has examined its witness CW1 Sh. Arun Kumar Singh, the then AROC, who had proved ExCW1/1 the certified copy of master data of the company, ExCW1/2 the certified copy of signatory information of accused no.1, ExCW1/3 present status of company data and ExPW1/4 the certificate u/s 65B of the Indian Evidence Act signed by Sh. Rajneesh Kumar Singh, Ex.CW1/5 is the CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 20 of 25 complaint petition, Mark A the baisc company data of the company attached with the complaint, Mark B the signatory information of accused no.1 is attached with the complaint and Mark C the show cause notice attached with the compliant. 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.
9. It is submitted by Ld. counsel for accused no.2 that accused no.2 was the Director of accused no.1 company for initial 1 - 2 days as wife of accused no.3 was not in India, who was to become a director at the place of accused no.2. It is submitted that after 1- 2 days, accused no.2 has resigned from the directorship of accused no.1 company and is accordingly not liable for non compliance of section 159 & 162 of the Companies Act, 1956. It is submitted that the fact that accused no.2 was to be director for 1 - 2 days from the complaint filed by accused no.3 to the RD, mentioning the said fact, which has also been replied by accused no.2 to the RD. It is submitted that as the letter received from RD and its reply by accused no.2 to the RD could not be proved by the office of RD despite issuance of summons for the production of same, accused no.2 has proved the same by way of secondary evidence. It is submitted that accused no.2 is liable to be acquitted as accused no.2 was director only for 1 -2 days in the accused no.1 company.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 21 of 25
10. It is submitted by Ld. counsel for accused no.1 & 3 that accused no.1 company could not conduct any meeting or transact any business due to non co-operative attitude of accused no.2. It is submitted that accused no.2 did not resign from the directorship of the company as per his promise nor participated in the proceedings for making the wife of accused no.3 as director in the company. It is submitted that accused no.2 is responsible for not conducting of AGM and for not filing of statutory documents. Further it is submitted that complaint is bad in law as during the pendency of present complaint, the accused no.1 company was strike off on the application of board of accused no.1 company and same order was communicated to accused no.1, however, after that the complainant has changed that order on its own and status of accused no.1 company is being shown as active company. It is submitted that accused no.1 & 3 should be acquitted as there is no default on the part of accused no.1 & 3 in not conducting AGM and in not filing the statutory documents.
11. 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 years 2009-10 to 2012-13 is not in dispute among the parties. The directors of accused no.1 company i.e. accused no.2 & 3 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.
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors 22 of 25
(i) Liability of accused no.2 Mr. Niranjan Mittal :
From the consideration of the submissions and from perusal of record, it is noted that though stand of accused no.2 has been that he was director for 1-2 days and resigned from accused no.1 company after 1 - 2 days as agreed with accused no.3, however, accused no.2 has not stated clearly the date of his resignation from the directorship of accused no.1 company. Accused no.2 has stated during his cross examination that he had tendered his handwritten resignation to accused no.3, however, he has not filed any copy of same in the court. Accused no.2 has also not filed any application before the court for directions to accused no.3 for placing on record the alleged hand written resignation tendered by accused no.2 to accused no.3. It is again surprising to note that accused no.2 has not obtained any acknowledgment of the said resignation nor the appropriate form was filled by accused no.2 for intimating his resignation to the ROC. It is again surprising to note that accused no.2 had stated in his cross examination that he has transferred his shares (50%) in accused no.1 company, however, he is not aware to whom the said shares were transferred. The above said unawareness of transferee of shares, not receiving of acknowledgment of tendering resignation and non informing the ROC about resignation is worth noting for the purposes of examining the truthfulness / falsity of the stand of as accused no.2 as alleged himself to be a Chartered Accountant and auditor of another company in which accused no.3 is a director and he is expected to know and follow the rules of Companies Act regarding resignation and transfer of shares. Further, the accused no.2 has relied on the letter sent by ROC to CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
23 of 25 him which accused no.2 has proved by secondary evidence, however, the complaint accompanied with said letter allegedly filed by accused no.3 against accused no.2 to the RD shows that the accused no.3 has alleged in the complaint that though accused no.2 was made director for 1-2 days, however, he had refused to resign as a director and to appoint Mrs. Beena Singh as director of accused no.1. The reply proved by accused no.2 as Mark B cannot be considered to be material for proving the fact that accused no.2 has resigned from accused no.1 company within 1-2 days of its incorporation.
On the basis of above discussion, accused no.2 could not bring any evidence to prove that he has resigned from accused no.1 company as director within 1-2 days of its incorporation or anytime before filing of the present complaint. Accordingly, accused no.2 is not absolved from his responsibility of holding AGM, filing of balance sheet and profit & loss statement and filing of annual return as per the provisions of the Companies Act 1956.
(ii) Liability of accused no.3 Mr. Harshpal Singh :
Accused no.3 had blamed accused no.2 for non transaction of any business by accused no.1 company and for non furnishing of statutory documents to the ROC, however, mere blaming other director for non co-operation does not exonerate a director from his liability for not conducting AGM and non filing of statutory documents. As far as the fact of striking of his company by ROC is concerned, it has been submitted by Ld. Company Prosecutor that though on an application filed on behalf of accused no.1 CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
24 of 25 company, the proceedings for striking of accused no.1 company was taken up and order of striking of was passed, however, there was no publication in official gazette as per section 560(5) of the Companies Act, 1956. It is submitted that even before publication, it has been noted by ROC that present case is pending adjudication and accordingly, the status of company was updated as Active company. There is no doubt that striking of company as per section 560(5) of the Companies Act, 1956, is concluded on publication in official gazette however, in the case at hand, there was no publication regarding the striking of accused no.1 company. The accused no.3 has not placed on record any proof / evidence to show that there was publication in official gazette regarding striking of order regarding accused no.1 company.
On the basis of above discussion, accused no.3 could not bring any evidence to prove that he is not liable for non holding AGM, filing of balance sheet and profit & loss statement and filing of annual return of accused no.1 company as per the provisions of the Companies Act,1956.
(iii) Liability of accused no.1 Company :
There is no doubt that the balance sheet, profit & loss statement and annual return of accused no.1 company was not filed for financial years 2009-10 to 2012-13. The directors of accused no.1 company i.e. accused no.2 & 3 could not prove the grounds / stands in their respective defence. No ground has been proved to exonerate the accused no.1 company from its liability for non holding AGM, filing of balance sheet and profit & loss CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors
25 of 25 statement and filing of annual return of accused no.1 company as per the provisions of the Companies Act,1956.
On the basis of above discussion, accused no.1, 2 & 3 are convicted for offence u/s 220/162 of Companies Act, 1956.
Digitally signed by MAYANK MITTALAnnounced in the open court MAYANK Date:
MITTAL 2024.10.15
on this 15.10.2024 17:37:11
+0530
MAYANK MITTAL
ACJM (Spl. Acts), CENTRAL
TIS HAZARI COURTS, DELHI
CC No.536012/2016 ROC v. M/s Ambe Organic Food Products Private Ltd.& Ors