Madhya Pradesh High Court
Meena Harish Matani vs Registrar Of Companies Madhya Pradesh on 13 December, 2022
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 13th OF DECEMBER, 2022
MISC. CRIMINAL CASE No. 49185 of 2019
BETWEEN:-
MEENA HARISH MATANI W/O MR. HARISH
MATANI, AGED ABOUT 70 YEARS,
OCCUPATION: HOUSEWIFE R/O 704,
SHANTI TOWER, MHADA FOUR
BUNGLOWS, ANDHERI (WEST), MUMBAI
(MAHARASHTRA)
.....PETITIONER
(BY SHRI GAURAV MISHRA - ADVOCATE)
AND
REGISTRAR OF COMPANIES MADHYA
PRADESH REGISTRAR MINISTRY OF
CORPORATE AFFAIRS, A BLOCK, SANJAY
COMPLEX, JAYENDRA GANJ, GWALIOR
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PAWAN KUMAR NEWASKAR - DEPUTY SOLICITOR
GENERAL)
This application coming on for admission this day, the court
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passed the following:
ORDER
Present petition is preferred by the petitioner under Section 482 of Cr.P.C. seeking quashment of private complaint filed at the instance of respondent whereby respondent preferred a private complaint for alleged offence under Section 74(3) r/w Section 74(2)(3) of Companies Act, 2013 (for brevity ' Act, 2013').
2. Reliefs as sought by petitioner are in following manner:-
In the aforesaid circumstances, fact and grounds it is most humbly prayed that proceeding against the petitioner n case no.34/2017 (Registrar of Companies Vs. M/s. Plethico Pharmaceuticals Limited and Others) pending before Special Judge (Companies Act 2013) may kindly be quashed and any other order which this Hon'ble Court deems fit in the circumstances of the case may kindly also be passed.
3. Precisely stated facts of the case are that on 4/12/1991 M/s. Plethico Pharmaceuticals Private Limited (hereinafter shall be referred to as "Company") was incorporated as private limited company under companies Act, 1956. Later on it got converted into 3 a Limited Company and it continued to be so. Petitioner as submitted was appointed as Additional Director in the category of Non-executive Independent Director in the Company w.e.f. 29/11/2006 pursuant to Section 263 of Companies Act, 1956. As the Company was listed Company, pursuant to clause 49 of Listing Agreement, it was required in the composition of Board to have minimum two Directors in the category of Non-executive Independent Directors.
4. The said Company invited deposits from public at large as per Section 58-A of Companies Act, 1956 and accordingly the Company issued invitation for acceptance of deposits vide advertisement dated 14/2/2011. In response to the said invitation, the said Company received deposits which were to be paid back after a specified time. Board of Directors specifically authorized Chairman cum Managing Director, CEO cum Whole-time Director of the Company to repay the deposits and for necessary compliance related to the said deposits accepted by the Company.
5. Petitioner remained in the company as Woman Independent Director between the period 31.03.2015 to 25.03.2016. It is further submitted that in effect she remained as Woman Independent Director for seven days for period the period 31.03.2015 to 4 07.04.2015 because by that time Official Liquidator has been appointed by this Court (Indore Bench) in Comp No.35/2013 vide order dated 07.04.2015. Therefore, based upon such short stint as Woman Independent Director, learned counsel for the petitioner craved the indulgence of this Court in respect of Section 149(12) of the Companies Act, 2013 to submit that she cannot be held liable.
6. Learned counsel for the petitioner fairly submitted that all other grounds as raised in MCRC.No.42303/2022 (Pramod Kishore Shrivastava Vs. The UOI and Anr.) have already been discussed vide order dated 07.12.2022 therefore, petitioner does not intend to argue on those points. However, he categorically stressed over the point that his case is distinguishable on facts on many counts.
7. Learned counsel for the respondent/UOI referred the order dated 07.12.2022 passed in MCRC.No.42303/2022 and submitted that scope of role of petitioner as per Section 149(12) of Act, 2013 can very well be judged in trial and at present scope of Section 482 dose not warrant such inquiry. It is further submitted that points as tried to be raised by the petitioner are already taken care of in order dated 07.12.2022 therefore, said points cannot be taken into consideration. However, on Section 149(12) of the Act, 2013, it is the submission that admittedly petitioner remained as Woman 5 Director for the time being and her respective role and scope of Section 149(12) of the Act would only be tested in trial and prayed for dismissal of petition.
8. Heard the counsel for the parties and perused the documents appended thereto.
9. This is the case where petitioner was a Woman Additional Director in the company and she remained as Director for one year. Her role vis a vis Section 149(12) of the Act, 2013 can only be tested on the anvil of evidence led by the parties in trial because Section 149(12) of the Act, 2013 refers liability of an Independent Director and Non-Executive Director (not being promoter or key managerial personnel) on the basis of certain contingencies as referred into it. Therefore, whether those contingencies existed or not can only be deciphered through trial and evidence led into it and not in a petition under Section 482 of Cr.P.C. For ready reference under Section 149(12) is reproduced as under:-
149. Company to have Board of Directors.--
(1) xxx
(2) xxx
(3) xxx......
(12) Notwithstanding anything contained in this Act,--6
(i) an independent director;
(ii) a non-executive director not being promoter or key managerial personnel, shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.
10. Perusal of the provision reveals that contingencies like acts of omissions or commission by a company which had occurred with her knowledge, Board processes, her consent or connivance or where she failed in not acting diligently are those attributes which cannot be decided under Section 482 of Cr.P.C.. Evidence is to be led by the parties in this regard.
11. For brevity the discussion already made in MCRC.No.42303/2022 vide order dated 07.12.2022, is not reproduced, however, this Court while dismissing this petition relies over the discussion made into the said petition (order dated 07.12.2022) and thereafter, reaches to the conclusion that in the interest of justice and in the fitness of thing, petitioner has to face trial and plead and proof her alleged innocence or her part of truth 7 through trial.
12. In cumulative analysis, petition under Section 482 of Cr.P.C. sans merit, is hereby dismissed.
(Anand Pathak) Judge Ashish* ASHISH Digitally signed by ASHISH CHAURASIA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya CHAUR Pradesh, 2.5.4.20=bf81a9adb1da24e4bc7b5195154c 3d4de08c6bb9303e52e2e7e728d9bac85bd 3, pseudonym=CA2EA6EDDF504F8F9C2790F A9A0FD201D0242B64, ASIA serialNumber=A926F3CBF979ECA6A4C477 577EEDBA3AB4F94593A930B98DAE1B0AD 16F90B5FD, cn=ASHISH CHAURASIA Date: 2022.12.14 10:46:23 -08'00'