Delhi District Court
Roc vs . M/S. Amroha Housing Ltd. on 22 March, 2007
1
ROC VS. M/S. AMROHA HOUSING LTD.
IN THE COURT OF SH. KANWAL JEET ARORA: ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE DELHI
REGISTRAR OF COMPANIES VS. M/S. AMROHA HOUSING LTD.
JUDGEMENT
1.Sl. No. of the case : 305-A, 305-B, 305-C,305-D, 305-E, 305-F, 305-G, 305-H of 2000
2.Date of commissions of the offence : For the years 1996-1999
3.Name of the complainant : Registrar of Companies.
4.Name of the accused : 1) M/s. Amroha Housing Ltd.
R/o A-144, Hari Nagar, Clock Tower New Delhi.
2) Sh. Ambrish Kumar Verma r/o 222, Avas Vikas Colony, Amroha Muradabad.
3) Sh. Avnish Kumar Gupta (proceedings qua him abated)
4) Sh. Gunjan Gupta Both r/o Kali Bagri Amroha, Muradabad, Distt. J.P. Nagar
5) Sh. Rajender Prasad r/o Bank colony, Vasudev Nagar, Distt. J.P. Nagar
6) Smt. Kamlesh Singh r/o Village Akbarpur, P.O. Amroha J.P.Nagar (U.P.)
5.Offence complained or proved : U/s 159/162/220(3) of the Co. Act
6.Plea of the accused : Pleaded not guilty and claimed trial.
7.The final order : Accused Rajender Prasad, Kamlesh Singh and Gunjan Gupta are acquitted .
Contd/-
2
ROC VS. M/S. AMROHA HOUSING LTD.
Accused Ambrish Kumar and accused no.1 company are convicted.
8.Date of such order : 22.03.2007 BRIEF STT. AND REASONS FOR THE DECISION OF THE CASE:
Registrar of Companies, Delhi and Haryana had filed these eight complaints against M/s Amroha Housing Ltd. (hereinafter referred to as accused company). Besides the accused company, Ambrish Kumar Verma, Avnish Gupta, Gunjan Gupta, Rajender Prasad and Kamlesh Singh were also named as accused persons, being directors of the accused company for offences U/s 159/162 of the Companies Act for non filing of annual return for the years 1996- 1999 and for offences U/s 162/220(3) of the Companies Act for non filing of balance sheet and profit and loss account for the years 1996- 1999.
2. The facts necessary for disposal of all these eight complaints, in nutshell, as stated by the complainant, are that M/s Amroha Housing Ltd., the accused company is a company duly incorporated under the Companies Act and is having its registered office at A-144, Hari Nagar, Clock Tower, New Delhi. It is further stated that Ambrish Kumar Verma, Avnish Gupta, Gunjan Gupta, Contd/-3
ROC VS. M/S. AMROHA HOUSING LTD.
Rajender Prasad and Kamlesh Singh , being directors of the accused company are the persons responsible for the day to day affairs of the company. It is further submitted that by virtue of provisions of Section 159 and of Section 220(1) of the Companies Act, the Managing Director/Directors/Principal Officers of all the companies are under a statutory obligation to file with the Registrar of Companies, copies of annual return and balance sheet and profit & loss account within the prescribed period mentioned in the relevant provisions.
3. It is alleged in the complaints that the accused company as well as other accused persons, being its directors, failed to file the required annual return and balance sheet and profit & loss account within the prescribed period. As per the complaints, accused company was supposed to file annual return with ROC for the relevant years on or before 30.11.96, 30.11.97, 30.11.98 and 30.11.99. It is also the case of the complainant that accused company was under a statutory obligation to file copies of balance sheet and profit & loss account for the relevant years with ROC on or before 30.10.96, 30.10.97, 30.10.98 and 30.10.99. It is submitted that, as the same were not filed within the prescribed period, hence the present fourteen complaints have been filed by ROC against the accused persons for Contd/-4
ROC VS. M/S. AMROHA HOUSING LTD. the years 1996 -1999.
4. After filing of the present complaints, accused persons were summoned. Accused Ambrish Kumar Verma appeared for himself and represented the accused company as well. Accused Gunjan Gupta, Rajender Prasad and Kamlesh Singh also tendered their appearance.
5. Finding a prima facie case for offences U/s 159/162/220(3) of the Companies Act against accused Ambrish Kumar Verma, Gunjan Gupta, Rajender Prasad and Kamlesh Singh, requisite notices U/s 251 Cr.PC were given in all the eight cases, to which they pleaded not guilty and claimed trial.
6. Complainant was thereafter called upon to substantiate its case by examining its witnesses.
7. PW1 Sh. Naval Kishore Gupta, during the course of his deposition, proved the certificate of incorporation of accused no.1 company as Ex.PW1/1. He proved the copy of form no.32 submitted at the time of incorporation of accused company regarding proof of directorship of the accused persons as Ex.PW1/2. He proved the copy of form no.32 filed on 13.08.99 regarding proof of directorship of accused Rajender Prasad and Kamlesh Singh as Ex.PW1/3. He Contd/-5
ROC VS. M/S. AMROHA HOUSING LTD.
stated that all the accused persons being directors of accused company, as per their record, were the persons responsible for day to day affairs of the company. He deposed that balance sheet and profit & loss account as well as annual report for the years 1996-99 were not filed with the office of ROC within the prescribed period. Therefore, all these complaints have been filed against the accused persons. He proved all the complaints as Ex.PW1/4.
8. PW1 was cross examined on behalf of accused Kamlesh Singh wherein he stated that as per their record only Ambrish Kumar Verma is still continuing as director of the company. He admitted the fact that there is no requisite form no.29 regarding consent and appointment of Kamlesh Singh and Rajender Prasad as director of accused company. On being cross examined on behalf of accused Gunjan Gupta, he admitted that on 23.11.98 they had received form no.32 regarding resignation of Gunjan Gupta w.e.f. 07.02.96. However, he stated that another form is available on record showing appointment of Gunjan Gupta w.e.f. 06.02.96.
9. Statement of accused persons were recorded U/s 313 Cr.PC wherein only Ambrish Kumar Verma admitted his liability as director of accused company for being the person responsible for day Contd/-
6ROC VS. M/S. AMROHA HOUSING LTD.
to day affairs of the company and for non filing of the requisite documents. The other three accused persons namely Gunjan Gupta, Rajender Prasad and Kamlesh Singh stated that they were not the person responsible for day to day affairs of the company. Accused Gunjan Gupta stated that she resigned immediately on the following day of the incorporation of the company and requisite form no.32 was submitted with the office of ROC. Accused Rajender Prasad and Kamlesh Singh also stated that they did not give any form no.29 regarding their consent to be appointed as director of accused no.1 company. None of the accused wished to lead any evidence in their defence.
10. I have heard the arguments advanced by Sh. R.K. Tiwari, prosecutor for ROC as well as by Counsel for accused. I have also perused the prosecution evidence on record, statement of accused as well as documents proved on record.
11. For the purposes of establishing its case against the accused persons, complainant was required to prove on record that the accused persons responsible for day to day affairs of accused company. For that the onus is on the complainant to prove on record the requisite form no.32 establishing that accused persons were Contd/-
7
ROC VS. M/S. AMROHA HOUSING LTD.
appointed as directors and on the date when cause of action for filing the present complaint had arisen, he or they were the persons at fault.
12. It is clear on perusal of the cross examination of PW1 that he admitted the receipt of form no.32 on 23.1.98 qua accused Gunjan Gupta whereby ROC was informed that Gunjan gupta has resigned w.e.f. 07.02.96. In view thereof, it is clear that accused Gunjan Gupta was not responsible for the affairs of accused company at the time when cause of action for filing of the present eight complaints had arisen in favour of the complainant. Although it was stated by PW1 that subsequently they received form no.32 whereby appointment of Gunjan Gupta was stated w.e.f. 06.12.96. Even if, this deposition of PW1 is admitted to be correct then Gunjan Gupta was at liberty to resign at any time, which she did on 07.02.96 itself and requisite information was provided to ROC. Therefore, she cannot held responsible for the offence, for which she was charged.
13. So far as accused Rajender Prasad and Kamlesh Singh are concerned, it is also clear from the deposition of PW1 that no form no.29 mentioning the consent of these two persons to be appointed as director of accused company is available on record nor any such document has been placed or proved on record by the complainant.
Contd/-
8
ROC VS. M/S. AMROHA HOUSING LTD.
In absence of any such document, complainant has failed to establish that accused Rajender Prasad and Kamlesh S ingh were also the persons incharge of and responsible for the affairs of accused company.
14. Having regards to the facts and circumstances of the case, I am of the considered opinion that complainant has failed to establish its case against accused Gunjan Gupta, Rajender Prasad and Kamlesh Singh.
15. With respect to accused Ambrish Kumar Verma, complainant has been able to prove its case, as the version of complainant was admitted by Ambrish Kumar Verma to be correct in his statement U/s 313 Cr.PC stating himself to be the director of accused company.
16. In view thereof, accused Ambrish Kumar for himself as well as for accused company had committed the offence as he failed to file the requisite documents with the office of ROC within the stipulated period of time.
17. Consequently, accused Ambrish Kumar as well as accused no.1 company are convicted for offence punishable U/s 159/162 in complaint case no.305-E, 305-F, 305-G and 305-H and for offence Contd/-
9ROC VS. M/S. AMROHA HOUSING LTD.
U/s 162/220(3) in respect to complaint case no. 305-A, 305-B, 305-C and 305-D
18. Let Ambrish Kumar Verma be heard on the point of sentence.
ANNOUNCED IN OPEN COURT.
DATED: 22.03.2006 (KANWALJEET ARORA) ADDL.CHIEF METROPOLITAN MAGISTRATE DELHI.
ORDER ON THE POINT OF SENTENCE Vide my separate judgment of same date, M/s Amroha Housing Ltd. And accused Ambrish Kumar Verma have been convicted for the offence punishable under section 159/162 in complaint case no.305-E, 305-F, 305-G and 305-H and for offence U/s 162/220(3) in respect to complaint case no. 305-A, 305-B, 305-C and 305-D. I have heard both the parties. A lenient view is prayed. I have considered the submissions advanced and have perused the facts and circumstances of the case. Having regards to these facts, M/s Amroha Housing Ltd. and Ambrish Kumar Verma are sentenced to pay a fine of Rs. 1,000/- per complaint. In all, a total fine of Rs.16,000/- is imposed on him and in default of payment of fine, he is Contd/-
10ROC VS. M/S. AMROHA HOUSING LTD.
directed to undergo SI for 30 days. Fine paid.
Copy of judgment of order be kept in each complaint. A copy of this order and judgment be also given to the convict. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT.
DATED: 22.03.2007 (KANWALJEET ARORA) ADDL.CHIEF METROPOLITAN MAGISTRATE DELHI.
Contd/-