Delhi District Court
Surendra Singh Anr vs The Registrar Of Companies on 30 June, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-002223-2022
CRIMINAL REVISION No.: 73/2022
1. SHRI. SURENDRA SINGH,
Director, Age-83 years,
S/o. Shri. Sumer Singh,
R/o. E-87, Paschimi Marg,
3rd Floor, Vasant Vihar,
New Delhi-110067.
2. SHRI. RAJENDRA SINGH PAWAR,
Director, Age-70 years,
S/o. Shri. Kanwal Singh,
R/o. N-3, Panchshila Park,
New Delhi-110017. ... REVISIONISTS/
PETITIONERS
VERSUS
THE REGISTRAR OF COMPANIES,
Government of India, Ministry of Corporate Affairs,
Acting through, Shri. A.K. Singh,
Officer of Registrar of Companies,
NCT of Delhi & Haryana, 4th Floor,
IFCI Tower, 61, Nehru Place
New Delhi-110019. ... RESPONDENT
Date of filing : 02.02.2022
Date of institution : 03.02.2022
Date when judgment was reserved : 19.04.2025
Date when judgment is pronounced : 30.06.2025
AND;
CNR No.: DLCT01-012572-2022
CRIMINAL REVISION No.: 476/2022
SHRI. AMIT SHARMA,
Director, Age-70 years,
S/o. Shri. Suraj Prakash Sharma,
R/o. A-20, Ground Floor,
Niti Bagh, New Delhi-110049. ... REVISIONIST/
PETITIONER
CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies
CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 1 of 35
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.06.30
15:26:40
+0530
VERSUS
THE REGISTRAR OF COMPANIES,
Government of India, Ministry of Corporate Affairs,
Acting through,
Shri. A.K. Singh (officer of Registrar of Companies),
NCT of Delhi & Haryana, 4th Floor,
IFCI Tower, 61, Nehru Place
New Delhi-110019. ... RESPONDENT
Date of filing : 03.09.2022
Date of institution : 05.09.2022
Date when judgment was reserved : 19.04.2025
Date when judgment is pronounced : 30.06.2025
JUDGMENT
1. The present common judgment shall determine the aforenoted criminal revision petitions, filed in terms of the provisions under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C./Code') bearing; Crl. Rev. Pet. No. 73/2022 and Crl. Rev. Pet. No. 476/2022. At the outset, it is noted that while the criminal revision petition bearing; Crl. Rev. Pet. No. 73/2022 has been preferred by/on behalf of the accused, namely, Sh. Surendra Singh and Sh. Rajendra Singh Panwar; criminal revision petition bearing; Crl. Rev. Pet. No. 476/2022 has been filed/preferred, by/on behalf of the accused, namely, Sh. Amit Sharma (hereinafter Sh. Surendra Singh, Sh. Rajendra Singh Panwar and Sh. Amit Sharma are collectively referred to as the 'accused persons/revisionists'). Relevantly, both the said revision petitions impugn the order dated 22.09.2021 (hereinafter referred to as 'impugned judgment'), passed by learned Additional Chief Metropolitan Magistrate (Special Acts)/Ld. ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi ( hereinafter referred to as the 'Ld. Trial Court/Ld. ACMM') in case bearing, CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 2 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:26:44 +0530 'Registrar of Companies v. Coforge Smartserve Limited, Ct. Case No. 2290/2021', being a complaint case/proceedings under Section 200 Cr.P.C. for the offence under Section 204 of the Companies Act, 2013 (hereinafter referred to as the 'Companies Act') read with Rule 9 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 (hereinafter referred to as the 'Companies Rules/Rules'). Pertinently, by virtue of the impugned order, the Ld. Trial Court while taking cognizance of the offence under Section 204(4) of the Companies Act inter alia directed issuance of summons against the revisionists/accused persons herein.
2. Succinctly, the genesis of the present proceedings is the aforenoted complaint, filed by/on behalf of the respondent against one, M/s. Coforge Smartserve Limited, erstwhile, NIIT Smartserve Limited (hereinafter referred to as the 'company/accused no. 1', as before the Ld. Trial Court), a public company, limited by its shares, incorporated on 12.04.2002, under the provisions of the Companies Act, 1956 and having its registered office at; No. 8, Balaji Estate, Third Floor, Guru Ravi Das Marg, Kalkaji, New Delhi-110019, as well as its directors/officers, including the revisionists herein. As per the respondent/complainant in the instant complaint, the Office of Director General Corporate Affairs, had issued a show cause notice no. C/RC101/440/2019/204/16-17, dated 04.11.2019 to the company and similar show cause notices, dated 04.11.2019 to its said directors/officers for violation of the provisions under Section 204 of the Companies Act read with Rule 9 of the Companies Rules via email. The complaint further records that the issuance of said show cause notices was necessitated for the reason that after CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 3 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:26:48 +0530 scrutiny of the e-form, 'AOC-4 XBRL', for the Financial Year 2016-17, filed by the company in the respondent's office, it was determined by the Office of the Director General Corporate Affairs, Ministry of Corporate Affairs that the company has not attached the Secretarial Audit report in 'Form MR-3' along with e- form 'AOC-4', in violation of the said provisions/Section 204 of the Companies Act read with Rule 9 of the Companies Rule, making the company and its officer-in-charge liable for prosecution under Section 204(4) of the Companies Act. Markedly, the complaint further chronicles that the reply to the said show cause notices was received by the office of the Director General, Corporate Affairs wherein the directors/officers of the company inter alia pleaded their unawareness as well as involvement in the commission of the offence on the pretext that they were not responsible for the affairs of the company being the independent/non-executive directors of the company, besides, it is also averred that they were not covered within the scope and ambit of, 'officer who is in default' under Section 2(60) of the Companies Act. Nevertheless, the reply(ies) to the said show cause notices is/are further asserted to record that during the Financial Year 2016-17 (hereinafter referred to as 'FY 2016-17'), the Board of Directors of the company had appointed, Ms. Preeti Grover, Company Secretary/CS (FCS-5862), M/s PG & Associates, Company Secretaries (CP No.-6065) as the Secretarial Auditors of the company to carry out the Secretarial Audit for the said financial year. Correspondingly, the company further avowed that it had also filed MGT 14 with the respondent, with respect of appointment of Secretarial Auditor on 20.05.2016 vide SRN G03701158. However, as per the said reply(ies), due to some CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 4 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:26:52 +0530 clerical error and inadvertence, where the applicability of Secretarial Audit was required to be provided, option 'No', instead of 'Yes' was selected and the Secretarial Audit report was not annexed with the form. Ergo, it was asserted that the mistake, if any, in connection with filing of 'Form AOC-4' was purely inadvertent and clerical in nature.
2.1. Notably, under the aforenoted complaint, in the background of the foregoing facts and circumstances, Sanction Letter No. RDNR/SANCTION/PROSECUTION/01/6785, dated 27.11.2020 was received by the respondent from the office of the Directorate, Regional Director (NR), New Delhi on 04.12.2020 to file the prosecution against the company for non-compliance of the provisions of the Companies Act/Companies Rules, followed by the filing of the aforenoted complaint before the Ld. Trial Court.
Notably, upon such complaint being filed, as aforenoted, Ld. Trial Court vide its order dated 22.09.2021/impugned order, took cognizance of the offence under Section 204(4) of the Companies Act and directed issuance of summons inter alia against the revisionists. Relevant extracts of the said order/impugned order is, as under;
"...Accused no.1 is the Company and accused no.2 to 6 are directors of Accused no.1 Company and are responsible for compliance of various provisions of Companies Act. It is further stated that as per Section 204(1) of Companies Act, 2013 Secretarial Audit report is required to be attached with the Directors report and the same has not been complied by the accused persons. Neither they are able to disclose any reason for not replying to the show-cause notice sent to them. Therefore, it is prayed that as the accused persons have committed offence under Section 204(4) of Companies Act, 2013 they may be summoned and tried as per law.
From the contents of the complaint, prima facie offence u/s 204 of Companies Act r/w Rule 9 of the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 5 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:26:55 +0530 Companies (Appointment and Remuneration of Managerial Personnel), Rules, 2014 is made out which are punishable under Section 204(4) of the Companies Act is disclosed. Accordingly, I take cognizance of the offence committed. All the accused be summoned for offences committed to answer the charges on filing of PF and RC, returnable for 04.02.2022..."
(Emphasis supplied) 2.2. Per contra, in the aforenoted revision petitions, the revisionists inter alia assert that the facts leading to the filing of the instant complaint, relate back to FY 2016-17, where during the said period, the company was required to get a Secretarial Audit conducted as per the provisions of under Section 204 of the Companies Act and Rules. As per the revisionists, the board of directors of the company had duly appointed Ms. Preeti Grover (FCS-5862), CS, M/s PG & Associates, Company Secretaries (Certificate of Practice No.-6065) on 21.04.2016 as the Secretarial Auditor of the company to carry out the Secretarial Audit for FY 2016-17 and the said audit was duly conducted with the auditor submitting its report dated 25.04.2017 to the board of directors of the company. As per the revisionists, the only issue in the matter is that in e-Form AOC-4 XBRL, filed with the respondent vide SRN G88099221 on 28/05/2018 for FY 2016-17, the secretarial audit report was omitted from being attached on account of an inadvertent human error, leading to the initiation of the prosecution in question, in terms of the provisions under Section 204 of the Companies Act read with Rule 9 of the Companies Rules. The revisionists further asserted that said inadvertent technical error crept in because in the 'XBRL' instance, instead of the option 'Yes', which was to be selected for the applicability of the secretarial audit, option 'No' was inadvertently selected and CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 6 of 35 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:26:59 +0530 therefore, secretarial audit report could not be attached to the said e-form 'AOC-4 XBRL'. It is further avowed that despite such unintentional omission, the revisionists as well as the company and other directors, received show cause notices, dated 04.11.2019 from MCA, alleging violation of Section 204(1) of the Companies Act read with Rule 9 of the Rules. Notably, as per the revisionists, the said notices were duly replied by the revisionists inter alia asserting that during the relevant point in time, the revisionists were neither responsible for the affairs of the company, nor in any way, involved with the commission of the offence. As such, it was proclaimed that the since the revisionists do not fall within the purview of 'officer who is in default' under Section 2(60) of the Companies Act, no prosecution/action ought to be initiated against them. Correspondingly, before this Court, the revisionists proclaimed that the officers who were in default and actually responsible for the affairs of the company, at the relevant point in time were; Sh. Arvind Thakur, Former Chairman & Managing Director of the Company; Sh. Amit Kumar Garg, Former Chief Financial Officer of the Company; and Ms. Barkha Sharma, Former Company Secretary of the Company, who alone can be held liable for alleged non-compliance of the provisions under Section 204 of the Companies Act, in view of the provisions under Section 2(60) of the Companies Act.
3. Ld. Counsel for the revisionists submitted that the impugned order was passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled cannons of law, deserving the same to be set aside at the outset, as suffering with gross illegality. In this regard, Ld. Counsel further submitted that the impugned order was passed by the Ld. Trial Court on mere CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 7 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:27:03 +0530 assumptions and that no sound and/or cogent reasons have been delineated under the said order. It was further submitted that the Ld. Trial Court, while passing the impugned order did not appreciate the fact that while impugned order does not take into account the correct facts and circumstances of the present case as well as the applicable provisions of law, in particular, provisions under Section 2(60) of the Companies Act; Section 149(12) of the Companies Act, read along with Ministry of Corporate Affairs' (hereinafter referred to as 'MCA') General Circular bearing No. 1/2020, dated 02/03/20220; and Section 468 Cr.P.C. As per the Ld. Counsel, the order of summoning of the revisionists does not demonstrate application of judicial mind to the matter, before taking cognizance in respect to the revisionists, which is mandated for setting the criminal proceedings into motion against an individual/accused. In this regard, Ld. Counsel for the revisionists vehemently contended that while passing the impugned order, the Ld. Trial Court ignored that at the time of alleged default, there was a Whole Time Managing Director in the company along-side a Chief Financial Officer and a Company Secretary, both falling under the category of key managerial personnel and the revisionists were only non-executive/independent directors of the company at the relevant point in time, not covered under the definition of term, 'officer who is in default' under Section 2(60) of the Companies Act. As per the Ld. Counsel, the Ld. Trial Court, consequently, erred in failing to appreciate that the revisionists cannot be held liable for the offence under Section 204 of the Companies Act, as the said provision encumbers/provides for criminality only against the 'officer who is in default' and not 'each and every director or officer of the Company'. Ergo, it was CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 8 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:27:06 +0530 submitted that the impugned order is liable to be set aside on this sole ground.
3.1. Even otherwise, Ld. Counsel for the revisionists fervently asserted that the alleged default in the present matter occurred due to an inadvertent, minor technical error in filing e-
form 'AOC-4 XBRL' for FY 2016-17, while preparing the 'XBRL instance', a back-end document required for filing said e-form AOC-4 XBRL, instead of the option 'Yes', which was to be selected for the applicability of the Secretarial Audit, option, 'No' got inadvertently selected and therefore, Secretarial Audit report could not be attached along with the said e-form. Further, Ld. Counsel for the revisionists reiterated that the revisionists were only non-executive/independent directors on the board of the company, having no role in the management of day-to-day affairs of the company. In fact, as per the Ld. Counsel, it is not even the case of the respondent in its complaint that the revisionists were charged with the duty to file said e-form or that the inadvertent error occurred due to their negligence, making the order of summons qua the revisionists, bad in law. Ld. Counsel for the revisionists further contended that under the impugned order, Ld. Trial Court made an observation that the accused never replied to the show cause notice issued by/on behalf of MCA to each of the accused persons, despite the fact that the replied to said show cause notices were duly tendered by all the accused, including the revisionists herein, clarifying that they were not covered within the definition of terms, 'officer who is in default' under Section 2(60) of the Companies Act. As per the Ld. Counsel, the said replies were already on the record of the Ld. Trial Court and were filed along with the complaint, despite which, the same were not CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 9 of 35 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:27:10 +0530 considered by the Ld. Trial Court, while passing the impugned order. It was further submitted that as per the various circulars, including the General Circular No. 1/2020, issued by MCA, the liability of a non-executive or independent director for a default committed by a company is limited to only such acts of omission or commission by a company which had occurred with the knowledge, attributable through Board processes, and with his consent or connivance of such person. However, as per the Ld. Counsel, the facts of the present case demonstrate that the technical lapse, is any, in filing of e-form occurred without knowledge of the revisionists, much less with their consent and/or participation in the same. Ergo, under such circumstances, as per the Ld. Counsel, the order of summoning of the revisionists, demonstrates complete lack of application of legal principles as well as judicial mind to the facts of the present case. 3.2. Ld. Counsel for the revisionists further submitted that the complainant/respondent, itself affirmed under the complaint in question that the officers who are in default are liable for penal action, thus, acknowledging that the revisionists, who do not meet the definition of 'officer who is in default' under the Section 2(60) of the Companies Act, could not have been even impugned by the complaint. Further, as per the Ld. Counsel, the facts stated in the revisionists' replies to the show cause notices have gone undisputed, even under the complaint and that such undisputed facts, showcase that there was no illegality or violation on part of the revisionists, much less they can be punished for the same. Further, as per the Ld. Counsel, the Ld. Trial Court even erred in considering the maintainability of the complaint against the revisionists herein. In this regard, it was submitted that as per the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 10 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:27:24 +0530 provisions under Section 468 Cr.P.C., the period of limitation for offences punishable with just a fine, as is prescribed under Section 204 of the Companies Act, extends to a period of only 06 (six) months. Further, it was asserted that since in the instant case, the violation in relation to e-form 'AOC-4 XBRL', the respondent/MCA, had knowledge about said default/offence from the date of filing of the e-form AOC-4 XBRL, i.e., from 28.05.2018; and in any case from 04.11.2019, when the show cause notices were issued inter alia on the revisionists, besides even the letter dated 13.03.2020, relied upon by the respondent indicates that the same dates back to March 2020, period of limitation of 6 (six) months, expired in September, 2020, way prior to the filing of the instant complaint, making the same barred by limitation. Ld. Counsel for the revisionists further fervently asserted that, even otherwise, the provisions under Section 204(4) of the Companies Act have also undergone amendment in view of the policy decision of the Government of India to decriminalize the certain offences, resulting in 29th Amendment Act of 2020, with effect from 21.12.2020, the provisions under Section 204(4) of the Companies Act, consequently decriminalized the offence. Ergo, it was asserted that on this count as well, the prosecution should be dropped. Ld. Counsel further vehemently reiterated that the instant complaint proceedings are barred by limitation and for other grounds on merits as well, making the present case, unfit for trial. Consequently, Ld. Counsel for the revisionists prayed that the present revision be allowed and the impugned order be set aside on merits as well as on law. In support of the said contentions, reliance was placed upon the decisions in; T. Baral v. Henry Ah Hoe & Anr., 1983 SCR (1) 905; Pepsi Foods Ltd. v. Special CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 11 of 35 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.06.30 15:27:29 +0530 Judicial Magistrate & Ors., (1998) 5 SCC 749; Trilok Chand v. State of Himachal Pradesh, Crl. Appeal No. 1831/2010, dated 01.10.2019 (SC); Shyam Lal v. State, AIR 1968 SC 392; Chintalapati Srinivasa Raju v. SEBI, (2018) 7 SCC 443; Harshendra Kumar D. v. Rebatilata Koley & Ors., (2011) 3 SCC 351; Har Sarup Bhasin v. Origo Commodities India Pvt. Ltd., Crl. MC No. 1869/2019, dated 07.01.2020 (DHC); Afsari Akbar Qayyum & Ors. v. State of U.P. & Anr., 2022 AHC:172052; Makibudeen & Ors. v. State of U.P. & Anr., Matters Under Article 227 No. 3512 of 2020, dated 02.12.2020 (Hon'ble Allahabad High Court); Vinod Kumar v. Smt. Mohrawati, 1990 SCC Online All. 737; and Bhagwan Swaroop v. State of U.P., 2014 SCC Online All. 16067.
4. Per contra, Ld. SPP for the respondent (in both the connected revision petitions) submitted that the impugned order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the present case and, as such, deserves no interference by this Court. It was further submitted that all the relevant facts and circumstances were duly considered by the Ld. Trial Court, besides the impugned order was passed by the Ld. Trial Court, wary of the settled judicial precedents and the material brought forth. In this regard, Ld. SPP outrightly submitted that the revisionists were members of Audit Committee of the company, being a listed company. As per Ld. SPP for the respondent, the role of the Audit Committee is of utmost significance, to safeguard the public money, invested in it and responsible for overseeing the audits of the company, be it statutory audit or secretarial audit. Ergo, Ld. SPP for the respondent averred that the requirement of appointing a secretarial auditor and getting a secretarial audit done, CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 12 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:27:34 +0530 was well within the knowledge of the Audit Committee and attributable to its members through board processes. Further, as per Ld. SPP for the respondent, as per Section 149(10) of the Companies Act read along with General Circular No. 1/2020, issued by MCA, dated 02.03.2020, the independent directors shall be liable for a default is such default is within their knowledge by virtue of board process. Correspondingly, as per Ld. SPP for the respondent, the Audit Committee being an overseeing mechanism for protecting the interests of the public in a listed company, cannot purge away with its liability, when default occurs. It was further reiterated by Ld. SPP for the respondent, the revisionists being a member of the Audit Committee for FY 2016-17, is liable for default that occurred in terms of Section 204 of the Companies Act. Even otherwise, Ld. SPP for the respondent submitted that the company has submitted no proof to show that the secretarial audit report was, in fact, got prepared and it cannot be reasonably concluded that non-attaching of the report to the financial statement was inadvertent.
4.1. Ld. SPP for the respondent further submitted that there is no delay in filing the complaint before the Ld. Trial Court as during the period of covid-19 pandemic, the period of limitation for pursuing legal remedy/complaint was extended by the Hon'ble Supreme Court. Further, as per the Ld. SPP for the respondent, the amendment under Section 204 of the Companies Act, too, would have no bearing in the instant case, as the manner, entreated on behalf of the revisionists. In so far as criminal revision petition bearing; Crl. Rev. Pet. No. 476/2022 is concerned, Ld. SPP for the revisionist therein (Amit Sharma), vehemently contented that even otherwise, the instant revision petition is not maintainable as CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 13 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:27:38 +0530 barred by limitation and no plausible reason/sufficient cause is forthcoming for condoning the delay in filing the said petition.
Accordingly, Ld. SPP for the respondent iterated that no illegality/infirmity can be attributed to the impugned order, so as to subject the same to any interference by this Court under this Court's exercise of its revisional jurisdiction. Consequently, it was entreated that the instant revision petitions deserve to be outrightly dismissed as grossly malicious and not maintainable on facts as well as law. In support of the said contention, reliance was placed upon the decisions in; Neera Saggi v. Union of India, Civil Appeal No. 2841/2020, dated 15.02.2021 (SC); and Basant Kumar Goswami v. State NCT of Delhi & Ors., MANU/DE/8038/2023.
5. The arguments of Ld. Counsel for the revisionists and that of Ld. SPP for the respondent have been heard in both the petitions as well as the records, including the Ld. Trial Court records, case laws relied upon by the parties as well as the written submissions/notes filed by/on behalf of the parties, thoroughly perused.
6. At the outset, it is observed that against the impugned order dated 22.09.2021, passed by the Ld. Trial Court, the criminal revision petition bearing; Crl. Rev. No. 73/2022 was filed by the revisionists therein (Sh. Surendra Singh and Sh. Rajendra Singh Pawar) only on 02.02.2022, whilst the criminal revision petition bearing; Crl. Rev. No. 476/2022 was filed by the revisionist therein (Sh. Amit Sharma) only on 03.09.2022. Apposite to outrightly note that as per Article 131 of the Schedule of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act'), limitation of 90 (ninety) days from the date of the order, sought to be challenged has been prescribed as the statutory period CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 14 of 35 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:27:41 +0530 of limitation. Ergo, seen in the said context, ideally, both the instant criminal revision petitions have been filed beyond the statutory prescribed period of limitation. However, in this regard, this Court deems it pertinent to make a reference to the decision of the Hon'ble Supreme Court in Re: Cognizance for Extension of Limitation, Suo Motu Writ Pet. (C) No. 3/2020, dated 10.01.2022, wherein the Hon'ble Court, while taking into consideration the restrictions imposed due to covid-19 pandemic and limited operation during the said period vis-à-vis the impact thereof on the period of limitation, noted as under;
"5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021 it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 15 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:27:45 +0530 instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings..."
(Emphasis supplied)
7. Consequently, it is observed from above that the period of 90 (ninety) days from the impugned order dated 22.09.2021 expires on 20.12.2021, at the time, when the restrictions owing to covid-19 pandemic were underway and the courts were operational only on limited strength/capacity. As aforenoted, the Hon'ble Supreme Court in Re: Cognizance for Extension of Limitation (Supra.) permitted a period/limitation of 90 (ninety) days from 01.03.2022 for filing any petition/initiating any proceedings, in case, "where the limitation would have expired during the period between 15.03.2020 till 28.02.2022...".
Ergo, seen in such context, Crl. Rev. No. 73/2022 was filed by the revisionists therein (Sh. Surendra Singh and Sh. Rajendra Singh Pawar) on 02.02.2022, within the said extended period of limitation, in view of the decision of the Hon'ble Apex Court in Re: Cognizance for Extension of Limitation (Supra.). However, as aforenoted, Crl. Rev. No. 476/2022 was filed by/on behalf of the revisionist (Sh. Amit Sharma) only on 03.09.2022, way beyond the said extended period of limitation , i.e., with an admitted delay of 95 (ninety five) days, even after such extended period. Notably, in this regard, revisionist, Amit Sharma moved an application under Section 5 of the Limitation Act, seeking condonation of delay, inter alia asserting that when the impugned order came to be passed, the said revisionist had already resigned from the company, two years prior, i.e., on 10.04.2019 and despite the same summons were not served at the residential address of the revisionist, Amit Sharma. Ld. Counsel for the revisionist further CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 16 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:27:48 +0530 submitted that it only extremely belatedly that the revisionist came to know of the impugned order, considering that the said revisionist was not even resident in India and frequently travelling to USA. Correspondingly, as per the Ld. Counsel, considering that the revisionist was frequently transiting from USA and India, it was not possible for the company to communicate the receipt of the summoning order/impugned order to the revisionist, within time. Further, as per the Ld. Counsel, situation was further complicated by the persevering covid-19 pandemic and the associated risks, challenges, and restrictions. Ld. Counsel further submitted that the revisionist Amit Sharma could return in India only in June-July, 2022, whereupon, he was able to take up the matter and decided to assail the impugned order. However, as per the Ld. Counsel, considering the medical condition of revisionist Amit Sharma, wherein her was admitted in Hospital for about 14 (fourteen) days, i.e., from 05.09.2022 to 18.09.2022, the delay was accentuated. Correspondingly, Ld. Counsel asserted that the revisionist is also a patient of uncontrolled asthma, with which he had been diagnosed back in the year 2019, and being daunted with the covid-19 pandemic, delay in filing of the instant petition occurred. As per the Ld. Counsel, the revisionist, Amit Sharma, acted with utmost diligence to gather all the relevant information and details through the assistance of the company and obtaining proper legal advice in the matter, it was only on 03.09.2022, the instant petition came to be filed before this Court. Ld. Counsel further asserted that the reasons for delay in filing the instant revision petition was neither deliberate nor intentional, rather, attributed to reasons beyond the control of the revisionist. Correspondingly, it was submitted that in case the delay in filing CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 17 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:27:52 +0530 the instant petition is not condoned, grave and irreparable loss would accrue to the revisionist, Amit Sharma and no loss would accrue to the respondent in case the entreaty for condonation of delay in allowed. In support of the said contentions, Ld. Counsel for the revisionist, relied upon the decisions in; Perumon Bhagvathy Devaswom v. Bhargavi Amma (Dead) by LRs & Ors., (2008) 8 SCC 3211; N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123; and The Province of Bombay v. Western India Automobile Association & Ors., 1948 SCC Online Bom 531 .
Needless to reiterate, Ld. SPP for the respondent vehemently opposed the prayer for condonation of delay, as no 'sufficient cause' is demonstrable from the material placed on record.
8. Notably, in order to deal with the aforesaid contentions of Ld. Counsel for the revisionist Amit Sharma, this Court deems it pertinent to note here that Section 5 of the Limitation Act, inter alia provides for condonation of delay/extension of prescribed period of limitation, in certain cases on demonstration of 'sufficient cause'. Relevantly, the words, 'sufficient cause' have been repeated asserted by superior courts to be elastic and liberally construed, in the interest of justice. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein the Hon'ble Court, while painstakingly collating the guidelines governing the exercise of court's power to condone delay as well as the meaning of the said words, enunciated as under;
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 18 of 35 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.06.30 15:27:55 +0530 courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted.
That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 19 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:00 +0530 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(Emphasis supplied)
9. Unmistakably, the rules of limitation, which are premised on the principles enshrined in a Latin maxim, 'interest reipublicae up sit finis litium1', are designed not to destroy the legal rights of parties, rather, to ensure that the parties do not resort to dilatory tactics. Ergo, considering the objective of the law and further being wary of the fact that there is no presumption under law that the delay in approaching courts was deliberate, courts 2 1 It is for the general welfare that a period be put to litigation.
2J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC OnLine Del 1082. CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 20 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:03 +0530 have repetitively professed for adoption of a pragmatic, justice- oriented approach, in variance to, technical interpretation, while determining 'sufficient cause' in a case. In fact, the Hon'ble Supreme Court in State of U.P. v. Satish Chand Shivhare & Brothers, 2022 SCC OnLine SC 2151, while professing for adoption of a balanced as well as liberal approach in the determination of a prayer for limitation/condonation of delay, reaffirmed as under;
"22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."
(Emphasis supplied)
10. Consequently, in light of the aforenoted judicial dictates/principles governing limitation, in the facts and circumstances and brought forth to the notice of this Court, this Court is of the considered opinion that the prayer for condonation in the instant case deserves to be allowed. As aforenoted, the reasons for delay in the present case are stated to have been attributed to a bona fide reasons of ailment of the revisionist, Amit Sharma, besides his unavailability in India at the relevant point in time, coupled with the ongoing covid-19 pandemic and the frail health of the said revisionist, as specified under the aforenoted CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 21 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:07 +0530 application. Needless to mention that this Court has further scrupulously analyzed the documents filed along with revisionist Amit Sharma's said application under Section 5 of the Limitation Act, entreating for condonation of delay, corroborating the aforenoted assertions. Correspondingly, the reasons for said delay, in the considered opinion of this Court cannot be treated as malicious or dilatory in any manner. Consequently, this Court unswervingly observes that the prayer for condonation of delay in the instant case, i.e., Crl. Rev. Pet. No. 476/2022 of the revisionist, Amit Sharma, deserves to be allowed and the period of 95 (ninety five) days of delay in preferring the said revision be condoned.
Accordingly, for the foregoing reasons, this Court outrightly allows the revisionist, Amit Sharma's prayer seeking condonation of delay and the period of 95 (ninety five) days' delay in filing/preferring the said revision, i.e., Crl. Rev. Pet. No. 476/2022, is hereby, condoned.
11. Proceeding further, however, before determining the merits of the case/issues posed before this Court, it is pertinent to make a reference to the provisions under law/Section 397 Cr.P.C.3, as under;
"397. Calling for records to exercise of powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings 3 Pari materia to Section 438 BNSS, which provides; "438. Calling for records to exercise powers of revision-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.***Explanation--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 439.***(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding...." (Emphasis supplied). CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 22 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:10 +0530 of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding..."
(Emphasis supplied)
12. Pertinently, from a perusal of the aforesaid, it is quite evident that the revisional jurisdiction of this Court can be agitated either suo motu or an application of parties, solely in the cases where there is a palpable error, non-compliance of the provision of law, decision of Trial Court being completely erroneous or where the judicial decision is exercised arbitrarily. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in Amit Kumar v. Ramesh Chander, (2012) 9 SCC 460 , wherein the Hon'ble Court while explicating the various contours of the provision under Section 397 Cr.P.C. observed as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 23 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:28:14 +0530 are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
(Emphasis supplied)
13. Similarly, the Hon'ble High Court of Delhi in V.K. Verma v. CBI, 2022 SCC OnLine Del 1192, in a similar context noted as under;
"67. The revisional jurisdiction is not meant to test the waters of what might happen in the trial. The Revisional Court has to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of the court below. While doing so, the Revisional Court does not dwell at length upon the facts and evidence of the case, rather it considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence. In the instant case, the Petitioner has failed to make out a case for exercise of the revisional jurisdiction since there is no patent error in the impugned order on the face of record."
(Emphasis supplied)
14. Quite evidently, it may be noted from above that the revisional jurisdiction of the higher court is quite limited and cannot be exercised in a routine manner. In fact, as aforenoted, the revisional Court can interfere only in the instances where an order of trial court was passed, unjustly and unfairly. Further, it is a CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 24 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:18 +0530 settled law4 that trite law that in a case where the order of subordinate Court does not suffer from any illegality, "merely because of equitable considerations, the revisional Court has no jurisdiction to re-consider the matter and pass a different order in a routine manner." Reference in this regard is made to the decision in Taron Mohan v. State, 2021 SCC OnLine Del 312, wherein the Hon'ble High Court of Delhi expounded as under;
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
(Emphasis supplied)
15. Notably in the context of the foregoing, it is further apposite to observe here that it is no longer res integra5 that the order of summoning is not an interlocutory order and revision against the same is not barred by the provisions under Section 397(2) Cr.P.C. Reference, in this regard is made to the decision of the Hon'ble Supreme Court in Girish Kumar Suneja v. Central Bureau of Investigation, (2017) 14 SCC 809, wherein the Hon'ble Court, while explicating the distinction between; final, intermediate and interlocutory order as well as determining the connotation of 'intermediate order(s)' as well as noting the order of summoning to be intermediate in nature, inter alia, observed as 4 Juned v. State of M.P., 2023 SCC OnLine MP 4458; and Dilip Damor v. State of M.P., 2024 SCC OnLine MP 958.
5Dhariwal Tobaco Products Ltd.& Ors. v. State of Maharashtra & Anr., AIR 2009 SC 1032.
CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies
CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 25 of 35
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.06.30
15:28:23 +0530
under;
16. There are three categories of orders that a court can pass--final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction--that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
*** *** ***
21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind--an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue."
(Emphasis supplied)
16. Clearly, it is seen from above that the Hon'ble Apex Court in unambiguous terms noted that though the order taking cognizance and summoning an accused prima facie appear to be interlocutory in nature, however, when the said orders are reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour, bringing them within the umbrella of 'intermediate order' on which the bar CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 26 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:27 +0530 envisaged under Section 397(2) Cr.P.C. would not apply. Consequently, being wary of the foregoing, however, before proceeding with the evaluation of the rival contentions of the parties, this Court deems it pertinent to reproduce the relevant provisions under the Companies Act, germane for the present discourse, as under;
"2. Definitions-In this Act, unless the context otherwise requires,-*** *** *** *** (60) "officer who is in default", for the purpose of any provision in this Act which enacts that athereby, n officer of the company who is in default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any of the following officers of a company, namely:-
(i) whole-time director;
(ii) key managerial personnel;
(iii) where there is no key managerial personnel, such director or directors as specified by the Board in this behalf and who has or have given his or their consent in writing to the Board to such specification, or all the directors, if no director is so specified;
(iv) any person who, under the immediate authority of the Board or any key managerial personnel, is charged with any responsibility including maintenance, filing or distribution of accounts or records, authorises, actively participates in, knowingly permits, or knowingly fails to take active steps to prevent, any default;
(v) any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act, other than a person who gives advice to the Board in a professional capacity;
(vi) every director, in respect of a contravention of any of the provisions of this Act, who is aware of such contravention by virtue of the receipt by him of any proceedings of the Board or participationthereby, in such proceedings without objecting to the same, or where such contravention had taken place with his consent or connivance;
CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 27 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:31 +0530
(vii) in respect of the issue or transfer of any shares of a company, the share transfer agents, registrars and merchant bankers to the issue or transfer;
*** *** ***
204. Secretarial audit for bigger companies-(1) Every listed company and a company belonging to other class of companies as may be prescribed shall annex with its Board's report made in terms of sub-
section (3) of section 134, a secretarial audit report, given by a company secretary in practice, in such form as may be prescribed.
(2) It shall be the duty of the company to give all assistance and facilities to the company secretary in practice, for auditing the secretarial and related records of the company.
(3) The Board of Directors, in their report made in terms of sub-section (3) of section 134, shall explain in full any qualification or observation or other remarks made by the company secretary in practice in his report under sub-section (1).
(4) If a company or any officer of the company or the company secretary in practice, contravenes the provisions of this section, the company, every officer of the company or the company secretary in practice, who is in default, shall be liable to a penalty of two lakh rupees..."
(Emphasis supplied)
17. Markedly, it is seen from above Section 204 of the Companies Act mandates the filing/attaching of secretarial audit report with the board report by, "...every listed company and a company belonging to other class of companies as may be prescribed...", whereby the contravention of such mandatory provision, entails liability of penalty, under sub-Section (4) of Section 204 of the Companies Act on the company, every officer of the company or the company secretary in practice, who is in default. Correspondingly, as aforenoted, officer, who is in default, under Section 2(60) of the Companies Act inter alia means the whole-time director, key managerial personnel or even every director of a company, in respect of a contravention of any of the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 28 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:35 +0530 provisions of the Companies Act, "...who is aware of such contravention by virtue of the receipt by him of any proceedings of the Board or participation in such proceedings without objecting to the same, or where such contravention had taken place with his consent or connivance..." Quite lucidly, the objective behind the provisions under Section 204 of the Companies Act is to ensure transparency, compliance, and good corporate governance in companies of significant size. In particular, the said provision plays a crucial role in guaranteeing corporate transparency, compliance with legal and regulatory frameworks, and enhancing investor confidence. Ergo, it is quite comprehensible that the said provision is made mandatory in nature. Needless to reiterate that by virtue of the provisions under law, liability for contravention of the said salutary provision, entails not only on the company, rather, inter alia also on every director thereof, who is aware of such contravention by virtue of the receipt by him of any proceedings of the Board or participation in such proceedings without objecting to the same, or where such contravention had taken place with his consent or connivance.
18. Ergo, being mindful of the principles hereinunder noted, this Court would now proceed with the determination of the arguments raised by Ld. Counsel for the revisionists and Ld. SPP for the respondent. In this regard, this Court deems it pertinent to note that it is the contention of Ld. Counsel for the revisionists that the Ld. Trial Court, while passing the order of summoning inter alia of the revisionist did not apply its judicial mind and set forth the reasons thereof for such summoning. Correspondingly, as per the Ld. Counsel, even the correct facts of the instant case, including the replies of the revisionist to the show cause notices, CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 29 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:39 +0530 issued by the respondent to the revisionists were not even taken cognizance of by the Ld. Trial Court. However, as aforenoted, Ld. SPP for the respondent responded by asserting that the summoning order was duly passed by the Ld. Trial Court being cognizant of the correct facts and judicial precedents in the instant case. Relevantly, in order to deal with the said contention, this Court deems it pertinent to make a reference to the decision in M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (Supra.), wherein the Hon'ble Supreme Court, noted as under;
"...Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused..."
(Emphasis supplied)
19. Unmistakably, it is seen from above that the Hon'ble Apex Court unambiguously recorded that summoning of an accused in a criminal case is a serious matter. Ergo, the order of Magistrate, summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto, by examining the nature of allegations made in the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 30 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:44 +0530 complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufficient for proceeding against the accused. Markedly, the said principles were repeatedly iterated by the Hon'ble Court in a catena of decisions, including that in Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609, wherein the Hon'ble Apex Court reiterated the law, as under;
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
(Emphasis supplied)
20. Consequently, in light of the foregoing, when the CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 31 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:48 +0530 impugned order is conscientiously analyzed, it is observed by this Court that no reasons, even for the namesake, have been specified therein by the Ld. Trial Court for summoning the revisionists herein. Needless to mention that not only is the summoning order, non-speaking/unreasoned, rather, even the role and complicity of the revisionists, necessitating their summoning in the instant case is not forthcoming. In fact, it is quite distressing that the Ld. Trial Court erroneously recorded under the impugned order that the show cause notice, issued by/on behalf of the respondent was not replied by the revisionists, notwithstanding the fact that the said observation is even contrary to the contents of the respondent's complaint. In fact, as aforenoted, the respondent under its complaint asserted that, though, the show cause notices dated 04.11.2019 were replied inter alia by the revisionists, however, the revisionists denied their liability under their respective replies.
Clearly, the said facts were not considered by the Ld. Trial Court, while passing the impugned order. Further, quite ominously, though, Ld. SPP for the respondent asserted before this Court the revisionists' complicity in the instant case is established from the fact that the revisionists were a member of Audit Committee of the company and were well aware of the contraventions on the part of the company, however, neither do such avowals fall from the contents of the complaint in question nor demonstrable from a reading of the impugned order. On the contrary, the only role attributed against the directors of the company, including the revisionists herein pertain to the revisionists and other accused persons (accused nos. 2-6 under the complaint) being the directors/officers of the company, being responsible for compliance of various provisions of Companies Act. Germane for CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 32 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.06.30 15:28:51 +0530 this purpose to reproduce the relevant extract(s) from the respondent's complaint, as under;
"...2. That the accused No. 2 to 6 are/were directors/officers of the Company and are/were responsible for compliance of various provisions of Companies Act and as such are considered officer in default under section 2(60) of the Companies Act, 2013 (hereinafter known as "Act"). Certified copy of the form 32, DIR-12 and signatory details evidencing the details of Accused No 02 to 06 (Directors/ Officers of the Company) is enclosed as Annexure - "B"..."
(Emphasis supplied)
21. Consequently, in light of the foregoing, reasons for summoning of the revisionists, in the considered opinion of this Court, ought to have been clearly spelled out under the impugned order. However, as aforenoted, the impugned order is silent on the said aspect. Quite ominously, another lamentable aspect of the impugned order is that the Ld. Trial Court, while passing the said order, failed to give any finding on the aspect of limitation in filing the complaint in question/respondent's complaint. Quite evidently, considering the punishment/sanction provided under Section 204 of the Companies Act is fine only. Ergo, in terms of Section 468 Cr.P.C., the limitation for filing of the instant complaint is six months only. However, in the instant case, the complaint for the offence relating to FY 2016-17 was only filed on 12.03.2021. Notably, in this regard, the complainant/respondent under its complaint asserted, as under;
"...8. That the Sanction Letter No RDNR/ SANCTION/PROSECUTION /01/6785 dated 27.11.2020 received in the office of the Complainant from directorate Office of the Regional Director (NR) New Delhi on 04.12.2020 to file the prosecution for non-compliances of the provisions of the Companies Act, 2013. As per the provisions of Section 468 of Cr.P.C., the period of limitation is of Six months. The sanction for launching the said prosecution was CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 33 of 35 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.06.30 15:28:55 +0530 received on 04.12.2020. Hence the offence came into knowledge of complainant on 04.12.2020 for the first time. As per the provisions of Section 468 of Cr.P.C., the complaint is under limitation period. Certified Copy of the letter dated 27.11.2020 is enclosed as Annexure- "F"..."
(Emphasis supplied)
22. Noticeably, in light of the foregoing contention of the respondent, it was incumbent on the Ld. trial Court to consider the aspect of limitation, in particular, while determining whether the respondent would be entitled to benefit under Section 469(1)(b) Cr.P.C. from the date of issuance of show cause notice by the respondent or from the date of receipt of the sanction for prosecution by the respondent and, in particular, whether the offence under Section 204 Cr.P.C. is such that it entails benefit/exclusion under Section 470 Cr.P.C., lest knowledge for the purposes of Section 469(1)(b) Cr.P.C. be attributable to the respondent from the date of issuance of show cause notice6 to the company and other accused persons, including the revisionist herein. However, the said aspects have also not been dealt by the Ld. Trial Court under the impugned order.
23. Therefore, in conspectus of above and further keeping in view, the facts and circumstances brought forth, in light of the rival contentions of the revisionists and the respondent, as well as the judicial dictates, this Court is of the considered opinion that the impugned order not only fails to be expressive and reflective of the bare minimum reasons, rather, bereft of specification of even the prima facie reasons for summoning of the revisionists herein. Needless to reiterate that the impugned order does not enunciate 6 Reference is made to the decision of the Hon'ble High Court of State of Telangana in M/s. Nusun Genetic Research Ltd & Other v. Registrar of Companies, CRL.P. No. 1360 of 2018, dated 17.10.2023, wherein it was inter alia held, "9. In view of Section 469 of Cr.P.C, the commencement of period of limitation would be from the date of knowledge to the Registrar of Companies. The said date can be taken as 14.06.2016 on which date the show-cause notice was sent to the accused company," (Emphasis supplied).
CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies
CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 34 of 35
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.06.30
15:28:59 +0530
the sufficient basis for proceeding against the revisionists, making the same, liable to be set aside on this sole count. Needless to reiterate that the Ld. Trial Court has even failed to consider the aspect of limitation in the instant case. Apposite here to further mention that though it holds highest regard for the decisions relied upon by Ld. Counsel for the respondent, however, the same would not come to the respondent, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
24. Consequently, in light of the aforesaid discussion, this Court unwaveringly records and reiterates that the impugned order/order dated 22.09.2021, passed by Ld. ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi in case bearing, 'Registrar of Companies v. Coforge Smartserve Limited, Ct. Case No. 2290/2021' inter alia directing issuance of summons against the revisionists/accused persons herein deserves to be set aside and is hereby set aside. As a corollary, the instant criminal revision petitions, i.e., Crl. Rev. Pet. No. 73/2022 and Crl. Rev. Pet. No. 476/2022 are allowed, in the above terms. Ld. Trial Court is directed to re-consider the aspect/issue of cognizance, summoning as well as limitation, afresh and pass a speaking order on the basis of material placed on record.
25. Trial Court Record along with a copy of this order/judgment be sent to the Ld. Trial Court concerned for information and compliance.
26. Revision files be consigned to record room after due compliance.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.06.30
15:29:04
+0530
Announced in the open Court (Abhishek Goyal)
on 30.06.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CR No. 73/2022 Surendra Singh & Anr. v. Registrar of Companies CR No. 476/2022 Amit Sharma v. Registrar of Companies Page No. 35 of 35