Madhya Pradesh High Court
Pramod Kishore Shrivastava vs Registrar Of Companies on 11 March, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. CRIMINAL CASE NO. 32136 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 32142 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
2
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 34044 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 34050 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
3
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 34472 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 34476 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
4
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 35380 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
MISC. CRIMINAL CASE NO. 35390 of 2023
BETWEEN:-
PRAMOD KISHORE SHRIVASTAVA S/O SHRI
OMPRAKASH SHRIVASTAVA, AGED 44 YEARS,
OCCUPATION -SERVICE R/O 706, HEAVENS APT.
GRAND EXOTICA, NEAR APS, BICHOLI
MARDANA INDORE -452016 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN SURANGE - ADVOCATE)
AND
REGISTRAR OF COMPANIES, MADHYA PRADESH,
SANJAY COMPLEX, 3RD FLOOR, A BLOCK,
JAYENDRAGANJ, LASHKAR GWALIOR (MADHYA
5
PRADESH)
.....RESPONDENT
(BY SHRI PRAVEEN KUMAR NEWASKAR - ADVOCATE)
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Reserved on : 11-12-2023
Delivered on : 11-03-2024
---------------------------------------------------------------------------------------
This petition having been heard and reserved for order coming on for
pronouncement this day, delivered the following:-
ORDER
1. Regard being had to the similitude of the issue involved and the fact that in all the petitions, petitioner is same, therefore, all the matters were heard analogously and decided by this common order. For convenience sake, facts of M.Cr.C.No.32136/2023 are taken into consideration for discussion purpose. Although chart has been prepared to demonstrate the nature of allegations in individual petition against the petitioner:
S.No. Case No. Allegation against the Violation of petitioner provisions/Offence 1 M.Cr.C.No.32136/23 Allegation is of non- Section 96 of the holding of Annual General Companies Act, Meeting for the Financial 2013 Year 2014-15 2 M.Cr.C.No.32142/23 Allegation is of non Section 129(2) and submitting financial 137(1) of the statements before Annual Companies Act, General Meeting and non 2013 filing of financial statements 3 M.Cr.C.No.34044/23 Allegation is of non filing Section 137 of the of Balance sheet for the Companies Act, Financial Year 2014-15 2013 4 M.Cr.C.No.34050/23 Allegation is of non filing Section 92(1) of of Annual Return for the the Companies Financial Year 2014-15 Act, 2013 5 M.Cr.C.No.34472/23 Allegation is of holding of Section 96 of the 6 Annual General Meeting on Companies Act, or before 13-11-2014 but 2013 held on 26-12-2014 6 M.Cr.C.No.34476/23 Allegation is that petitioner Section 129(7) of Company failed to comply the Companies with Accounting standard Act, 2013
-18 disclosure under realted party disclosure.
7 M.Cr.C.No.35380/23 Allegation is that Company Section 129(7) of failed to comply with the Companies Accounting standard -11 Act, 2013. disclosure under effect of change in foreign currency. 8 M.Cr.C.No.35390/23 Allegation is of non- Section 92(1) of holding of Annual General the Companies Meeting and non filing of Act, 2013 Annual return
2. The present petition (M.Cr.C.No.32136/2023) under Section 482 of Cr.P.C. is preferred by the petitioner seeking following reliefs:
"It is therefore, most humbly prayed that this Hon'ble Court may kindly be pleased to allow this petition and orders to quash the Complaint and entire consequential proceedings of Criminal Case No.6757/2016, pending against the petitioner in the Court of Chief Judicial Magistrate, Gwalior (M.P.) in the interest of justice."
3. The respondent - Registrar of Companies filed a complaint against the petitioner and other co-accused persons before the Court of learned Chief Judicial Magistrate, Gwalior under Section 99 read with Section 96 of the Companies Act, 2013 (hereinafter referred to as "the Act of 2013") vide Criminal Case No.6757/2016. As per the allegations made in the complaint, 7 during the course of inspection of the Books of Accounts of the Company carried out by the Central Government under Section 206(5) of the Act of 2013, it was observed by the inspecting officers that the provisions of Section 96 of the Act of 2013 have been contravened because as per record, the last Annual General Meeting (AGM) was held on 26-12-2014 and thereafter no AGM has been held by the Company for the financial year 2014-15. It is also alleged that the Company and accused No.1 to 11 failed to hold its AGM for the financial year 2014-15 as per provisions of the Act of 2013.
4. Petitioner earlier preferred petition vide M.Cr.C.No.42303/2022 before this Court on the ground that petitioner was not Key Managerial Personnel as per Section 2(51) of the Act of 2013 and therefore, he was not Officer who is in Default as per Section 2(60) of the Act of 2013. Said petition was filed under Section 482 of Cr.P.C. for quashment of the proceedings as well as taking exception to the order passed by the trial Court vide order dated 28-07-2022 whereby the application preferred under Section 227 of Cr.P.C. for discharge of petitioner, was rejected.
5. It is the submission of learned counsel for the petitioner that petitioner resigned on 31-03-2015, therefore, he had no liability to convene AGM upto to 30-09-2015 because he was not at the helm of affairs by that time. It is further submitted that without impleading the Company, Directors cannot be prosecuted as per Section 1(4) of the Act of 2013. He relied upon the judgment of Apex Court in the case of Aneeta Hada Vs. M/s Godfather Travels & Tours Pvt. Ltd. (2012) 5 SCC 661 and referred 8 different paragraphs in support of his submission to bring home the analogy that without impleading the Company, case against the Directors could not have been filed.
6. It is further submitted that no specific role has been assigned to the petitioner in the Company, therefore, he was not the person who was either Key Managerial Personnel or the person who was in Decision Making Process, therefore, the complaint suffers from effective impleadment of party. In support of submission, learned counsel relied the judgment of Apex Court in the case of Lalankumar Singh Vs. State of Maharashtra, AIR 2022 SC 5151 to submit that petitioner was not in-charge and was not responsible for the Company and conduct of its business.
7. Learned counsel for the petitioner also raised the question of delay and submits that as per Section 468 of Cr.P.C., complaint should have been filed within six months. He relied upon the judgment of this Court dated 12-07-2023 passed in M.Cr.C.,No.39997/2022 (M/s Hotline Teletude and Components Ltd. & Ors. Vs. Registrar of Companies).
8. It is the primary responsibility of complainant to make specific averment and no vicarious liability can be invoked in the case in hand. He relied upon the judgment of Apex Court in the case of National Small Industries Corporation Vs. Harmeet Singh, (2010) 3 SCC 330. He also relied upon the order of this Court dated 13-03-2023 passed in M.Cr.C.No.6965 of 2023 (Avtar Singh Narang & Anr. Vs. Registrar of Companies).
9. Per contra, learned counsel for the respondent opposed the prayer while submitting reply. It is submitted by learned counsel 9 for the respondent that the Company was incorporated in the State of Madhya Pradesh on 04-12-1991 under the provisions of the Companies Act, 1956 (hereinafter referred to as "the Act of 1956") and balance sheet of the Company as on 31-12-2012 reveals that Company has accepted Rs.1,46,60,00,000/- in the form of Deposits. Various complaints from different deposit holders of Company were received and technical scrutiny of company was conducted. During the course of enquiry, several violations relating to the provisions of the Act of 2013 were found. One such violation was relating to Section 96 of the Act of 2013 was observed by the Ministry and directed to file prosecution for violation of Section 96 read with Section 99 against the Company and its officers in default. Prosecution has been filed against the Company and its officers in default for the financial year 2014-15.
10. Petitioner as per the record of Registrar of Companies, Madhya Pradesh, was appointed as Additional Director for the period 29- 11-2006 to 30-03-2007. Relevant documents Form 32 etc. are filed with the reply. Later on, designation of petitioner was changed from Additional Director to Director w.e.f. 30-03-2007 and he continued till 31-03-2015. He resigned from the post of Director of the accused company on 31-03-2015 as per DIR 12 filed by the accused company. Under the Act of 1956 only company was obliged to file this information with the Registrar. After enforcement of the Act of 2013 as per Section 168 it was the duty of the Company to intimate Registrar in such manner and in such form as may be prescribed. Therefore, it was the duty 10 of the Company to intimate about the resignation besides intimation to be given by the Director. The acknowledgment of resignation is dated 03-04-2015 by the Company Secretary of the Company. Petitioner as Director also sent resignation which is filed as Annexure -3 with the return. Since petitioner was Director in the accused company from 30-03-2007 to 31-03-2015, therefore, he has to be tried in accordance with law.
11. Learned counsel for the respondent further referred the order dated 07-12-2022 passed in M.Cr.C.No.42303/2022 to submit that on almost same set of facts, petition was preferred by the petitioner but the same was dismissed. Therefore, trial is to be held and trial will unfold the truth. It is not a case where extraordinary jurisdiction can be invoked because some disputed facts are involved and those can only be tested in trial.
12. Heard learned counsel for the parties at length and perused the documents appended thereto.
13. This is a case where petitioner has sought following reliefs:
"It is therefore, most humbly prayed that this Hon'ble Court may kindly be pleased to allow this petition and orders to quash the Complaint and entire consequential proceedings of Criminal Case No.6757/2016, pending against the petitioner in the Court of Chief Judicial Magistrate, Gwalior (M.P.) in the interest of justice."
14. Earlier a petition under Section 482 of Cr.P.C. as referred by the respondent was preferred by the petitioner vide M.Cr.C.No.42303/2022 which was dismissed vide order dated 11 07-12-2022. In the said petition preferred under Section 482 of Cr.P.C. the reliefs sought by the petitioner were in following manner:
"A. The impugned Order dated 28/07/2022 passed in Criminal Case No. SC/128/2016 titled as "Registrar of Companies Vs. M/s. Plethico Pharmaceutical Limited and Others" by Learned IX Additional Sessions Judge, Gwalior/ Special Court (Companies Act, 2013), Gwalior, Madhya Pradesh and B. By quashing the criminal proceedings pending before Learned IX Additional Sessions Judge, Gwalior/Special Court (Companies Act, 2013), Gwalior, Madhya Pradesh in Criminal Complaint No. SC/128/2016 titled as "Registrar of Companies Vs. M/s. Plethico Pharmaceutical Limited and Others" so in far as related to the present Petitioner in the interest of justice. Or II. The petitioner further prays to grant any other relief which the Hon'ble Court deems fit and proper in the facts and circumstances of the present case to secure the ends of Justice."
15. If the reliefs claimed in both the petitions are seen in juxtaposition then it appears that they are overlapping. In the said petition bearing M.Cr.C.No.42303/2022 main ground was of false implication as according to him, he was neither Key Managerial Personnel as per Section 2(51) of the Act of 2013 nor Officer who is in Default as per Section 2(60) of the Act of 2013. He also challenged the order dated 28-07-2022 passed by the trial 12 Court whereby the application of petitioner for discharge was dismissed.
16. Therefore, impliedly petitioner under the garb of this petition is trying to get the proceedings quashed although on different ground but looking to the overlapping nature of factual details spelt out in the application for discharge and in petition under Section 482 of Cr.P.C., this would amount to review of its own order which is not permissible under Section 362 of Cr.P.C. The ground as raised by the petitioner in respect of false implication, it is to be decided at the anvil of trial because Section 168 of the Act of 2013 contemplates that Company shall intimate the Registrar about resignation of Director in the manner prescribed into it and that fact has to be placed in the report of Director laid in the immediately following General Meeting by the Company. Whether compliance of said provision was carried out or not and if carried out then in what manner, are some questions which are to be decided in trial by leading evidence. So is the case of delay and regarding role of petitioner. Although petitioner tried to submit that he was not having any specific role to play but that aspect has already been discussed in detail in earlier round of litigation vide M.Cr.C.No.42303/2022. The plea of limitation shall also be considered by the trial Court in tandem with Sections 468 and 469 of Cr.P.C.
17. Judgments relied upon by the petitioner in the case of Aneeta Hada (supra) does not apply in the present set of facts because that was the case under Negotiable Instruments Act and on close scrutiny it appears that it nowhere apply in the present set of 13 facts, thus it is distinguishable. Other judgments relied upon the petitioner move in different factual realm and cannot be borrowed to allow the petition and discharge the petitioner without holding trial.
18. This is a case where crores of rupees of investors were allegedly siphoned off and what is the role of respective directors is just to be seen and tried. Therefore, in view of Section 168(2) Proviso, Section 96 and 99 of the Act of 2013, petitioner is liable to be tried.
19. On the basis of cumulative analysis, in the considered opinion of this Court, no case for interference is made out. Petition sans merits and is hereby dismissed.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2024.03.11
19:53:38
+05'30'