Delhi District Court
Roc vs . Kapil Saluja on 7 August, 2018
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDL. CHIEF METROPOLITAN MAGISTRATES (Spl. Acts): CENTRAL
TIS HAZARI COURTS, DELHI
ROC Vs. Kapil Saluja
CC No. 535870/16
JUDGMENT
(a)Name of complainant : Registrar of Companies, Delhi & Haryana through Sh. Rajneesh Kumar Singh, Asstt, Registrar of Companies, NCT of Delhi & Haryana
(b)Name, parentage, residence: Mr. Kapil Saluja of accused C.P.No. 7633, A3/90 Janakpuri, New Delhi.
(c)Offence complained of/ proved : U/s 628 of Companies Act, 1956
(d)Plea of accused : Pleaded not guilty
(e)Final order : Acquitted
(g)Date of such order : 07.08.2018 Date of institution : 19.03.2016 Arguments heard/order reserved: 07.08.2018 Date of Judgment: 07.08.2018 Brief statement of the reasons for the decision: 1 The complainant Sh. Rajneesh Kumar Singh, the then Deputy Registrar of Companies NCT of Delhi & Haryana filed the present complaint U/s 628 of the Companies Act, 1956 (for short the 'Act') ROC vs. Kapil Saluja CC No. 535870/16 1 of 9 against the accused being the Company Secretary of the company M/s Infolance Software Solutions Ltd. registered with the office of the complainant, has not mentioned in his compliance certificate for the year ended 31.03.2013, that the company is in default in filing of the balance sheet, profit & loss account and annual return for the financial year 201112 and hence, accused Kapil Saluja, being Company Secretary is liable for action U/s 628 of the Act for filing fake certificate.
2 Accused was summoned. After appearance, copy of complaint and documents were supplied. A notice u/s 251 Cr.P.C was framed against the accused for the offence punishable u/s 628 of the Act to which he pleaded not guilty and claimed trial.
3 In order to substantiate the allegations made in the complaint, complainant after substituting the AR, examined Ms. Shefali Gupta, AROC as CW1 who deposed on behalf of complainant Sh. Rajneesh Kumar Singh. She deposed that complainant Sh. Rajneesh Kumar Singh filed the present complaint in his capacity as Assistant Registrar of Companies and she being AROC authorized to depose on behalf of complainant by office order dt. 23.05.2018. She stated that M/s.Infolance Software Solutions Ltd. is a company registered with the office of ROC, NCT of Delhi & Haryana having registered office at shop no. 2, Khasra no. 403 & 367, Village Bakoli, New Delhi. She proved Electronic copy of master data of the company is Ex.CW1/1. She further stated that the accused namely Sh. Kapil Saluja was the Company Secretary of M/s Infolance Software Solutions ltd. and has issued ROC vs. Kapil Saluja CC No. 535870/16 2 of 9 compliance certificate in respect of the said company for the financial year ending 31st March, 2013. She further stated that in the compliance certificate Ex. CW1/2 (colly) issued by accused he failed to bring to the notice that company has not filed balance sheet, profit & loss account and annual return for the financial year ending 31st March 2012. She further stated that the office of complainant has conducted scrutiny of financial statements of company and observed that the company is in violation of provisions of Companies Act, 1956 and scrutiny report was sent to Directorate, Northern Region which is Ex. CW1/3 (colly). CW1 further stated that on the basis of directions received from Ministry of Corporate Affairs and Directorate (NR), showcause notice dated 09.06.15 was issued to the accused which is Ex. CW1/6 and a report was sent to Directorate (NR) which is Ex. CW1/7 (colly) on the basis of which sanction/directions were received from Ministry of Corporate Affairs to the Directorate with a copy to complainant for launching of present prosecution and the said sanction is Ex. CW1/8 (colly). The complaint was exhibited as Ex. CW1/9 and the certificate U/s 65B of Indian Evidence Act as Ex. CW1/10. Ld. Counsel for the accused had objected to the mode and manner of proof of all the exhibits as neither certified copy nor original has been placed on record.
4 During cross examination CW1 admitted that she has not worked with Sh. Rajneesh Kumar Singh who has filed the present complaint. She also admitted that certificate U/s 65B Ex. CW1/10 does not bear her signatures. She voluntarily stated that in terms of section 399 Companies Act 2013, any document can be presented as legal ROC vs. Kapil Saluja CC No. 535870/16 3 of 9 evidence and certificate U/s 65B Indian Evidence Act is not mandatory. She admitted that she was not incharge of the data base maintained by ROC. She admitted that it is not mentioned in Ex. CW1/2, that the financial statement including balance sheet and annual return for the FY 201112 has been filed by the company. She failed to state whether the compliance certificate has been prepared in accordance with Companies (compliance certificate ) Rules, 2011. She also failed to state whether there is any specific format/column in the said rules to be filled by the issuing Company Secretary to point out the defaults made by the company in its filings. She neither admitted nor denied that form provided for issuing certificate under the said Rules only provides for furnishing the details of forms in returns filed by the company during financial year as annexure B. She admitted that Ex. CW1/2 must be as per the format provided under the Rules. She admitted that Companies Act permits to file at later stage the financial statements after completing the requisite formalities including payment of penalty. She denied suggestion that she is not competent to depose in the present matter.
5 After examining the abovesaid witness, complainant evidence is closed. Thereafter, statement of the accused was recorded. No defence evidence was led.
6 Final arguments heard. Record perused.
7 I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and gone through the relevant ROC vs. Kapil Saluja CC No. 535870/16 4 of 9 records. I have also considered the relevant provisions of law.
8 Ld. Company Prosecutor for the complainant argued that the case of the prosecution has been proved beyond reasonable doubt in view of the testimony of the witnesses. She further argued that the accused being qualified as Company Secretary is duty bound to indicate the non filings by the company M/s Infolance Software Solutions Ltd. in his compliance report and she prays for conviction.
9 On the other hand, Ld. Counsel for accused argued that the complainant has failed to prove the allegations as the documents filed with the complaint are not proved in accordance with Indian Evidence Act or even in accordance with the Companies Act, 1956. He further argued that the Companies (Compliance Certificate) Rules, 2001 does not provide a format for indicating the non filings by the company and the accused is not at fault in not indicating the non filings by the company. He further argued that the said rules only provides for the format as annexureB which provides to indicate the forms and returns filed by company with the ROC during the financial year ending 31 st March of a relevant year. He prays for acquittal of the accused.
10 Relevant provisions of section 628 of the Act is reproduced below:
628. Penalty for false statements. If in any return, report, certificate, balance sheet, prospectus, statement or other document required by or for the purpose of any of the provisions of this Act, any person makes a statement ROC vs. Kapil Saluja CC No. 535870/16 5 of 9
(a) which is false in any material particular, knowing it to be false; or
(b) which omits any material fact knowing it to be material, he shall, save as otherwise expressly provided in this Act, be punishable with imprisonment for a term which may extend to two years and shall also be liable to fine.
11 . Whether the accused being Company Secretary of the company has made any false statement in issuing Secretarial Compliance Certificate : The complainant has claimed that accused being Company Secretary has omits to disclose the non filing of annual returns by M/s Infolance Software Solutions Ltd. for the financial year 201112. In support of the said allegations Ex. CW1/2 i.e. copy of compliance certificate is placed on record. However, it was argued on behalf of accused that the accused is not required to declare the non filing as AnnexureB provided under the Companies (Compliance Certificate) Rules 2001 provides only for declaration of the forms and returns as filed by the company and it does not provide any format for indicating the non filings. I have gone through the said rules. The certificate is to be issued in terms of section 383A (1) of the Act. The Rules provides that the Company Secretary is required to certify the maintaining of registers, filing of forms and returns and other statutory compliances. The AnnexureB requires the Company Secretary to disclose the forms and returns filed by the company. It nowhere ask any details with respect to any non filing on behalf of the company. The accused has nowhere stated in his Compliance Certificate that M/s Infolance Software Solution Ltd. has filed balance sheet and annual ROC vs. Kapil Saluja CC No. 535870/16 6 of 9 returns for the financial year 201112. He has only mentioned the forms filed by the company during financial year ending 31.03.2013. The accused has not made any statement in the said certificate which on scrutiny by the complainant was found to be false.
12 Whether the complainant has proved the documents filed with the complaint: Ld. Counsel for the accused has objected to the mode and manner of proof of documents which were exhibited during testimony of CW1 and during arguments had pointed out that since the documents have not been proved either in terms of Indian Evidence Act or under the provisions of Companies Act, 1956, the complainant has failed to prove the allegations against the accused. On the other hand, Ld. Company Prosecutor had argued that in terms of Section 610, 610A & 610B of Companies Act, the documents have been duly proved. Section 610(3) of Companies Act 1956 provides that a copy of, or extract from, any document kept and registered at any of the offices of companies under the Act, certified to be true copy under the hand of Registrar shall in all legal proceedings be admissible in evidence as of equal validity with the original document. As far as electronic record is concerned, the provision of Section 610A are applicable which provides that notwithstanding any contained in any other law for the time being in force, the computer printout shall deem to be document and admissible in any proceedings without further proof or production of original, if the conditions in sub section 2 of section 610A are satisfied. Section 2 provides that the information contained in or derived from documents filed by the company on paper or on any computer readable media is ROC vs. Kapil Saluja CC No. 535870/16 7 of 9 admissible.
13 The complainant has filed Ex. CW1/1 which is computer printout dt. 23.02.2016 downloaded from the MCA portal showing the details of filing of annual returns and balance sheet. This document bears stamp of the ROC alongwith signatures of Dy./AROC. This document satisfied the requirement of admissibility of document as evidence U/s 610 & 610A of the Act.
14 However, Ex. CW1/2 to CW1/8 are the documents which includes the compliance certificate and various correspondence/reports between the office of ROC, Regional Director (NR) and Ministry of Corporate Affairs, which admittedly are not computer printouts or documents kept on computer media and therefore, they do not fall under the category of admissible evidence in terms of Section 610 A. But, all these documents since kept in physical form with the office of ROC, therefore, the provisions of Section 610 of the Act is applicable. None of the documents from Ex. CW1/2 to Ex. CW1/8 bears any stamp of certification of the Registrar of Companies as provided under sub section 3 of Section 610 of the Act. The complainant despite objections raised by the accused has not made any effort to bring the original of those records while recording testimony of CW1. There is clear non compliance of section 610(3) of the Act to prove the evidence of documents kept by Registrar. Hence, I am satisfied that complainant has failed to prove the documents as admissible evidence for the present prosecution.
ROC vs. Kapil Saluja CC No. 535870/16 8 of 9 15 In view of the above discussion and evidence on record, I am
satisfied that the complainant has not proved the documents as per law being admissible evidence. Even otherwise, the allegations of false statement against the accused are not made out as in Ex. CW1/2, there are no averments that company had filed annual return for FY 201112.
16 Accordingly, I am satisfied that complainant has failed to prove the allegations against the accused beyond reasonable doubt. Hence, accused Kapil Saluja is acquitted of allegation leveled against him. Bail bond stands cancelled. Surety is discharged.
17 Copy of the judgment be given free of cost to the accused. File be consigned to Record Room.
18 The soft copy of the judgment be uploaded on the server with digital signature.
Digitally signed PAWAN by PAWAN
SNGH RAJAWAT
SNGH Date:
RAJAWAT 2018.08.08
12:21:26 +0530
(PAWAN SINGH RAJAWAT)
ACMM(Special Acts) CENTRAL
TIS HAZARI COURTS DELHI
Announced in open
Court on 7th of August, 2018.
ROC vs. Kapil Saluja CC No. 535870/16 9 of 9