Kerala High Court
M/S Madaris Impex Private Limited vs Registrar Of Companies, Kerala Company on 26 March, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:25744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 26TH DAY OF MARCH 2025/5TH CHAITHRA, 1947
CRL.MC NO. 5483 OF 2022
AGAINST THE ORDER/JUDGMENT IN ST NO.64 OF 2022 OF ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (E&O), ERNAKULAM
PETITIONERS/ACCUSED 1 TO 3:
1 M/S RESFEBER INFOSOLUTIONS PRIVATE LIMITED,
KRISHNA, TC 7/727, MARUTHENKUZHI,
THIRUVANATHAPURAM, PIN - 695030
REPRESENTED BY INDIRA BAI CHELAPPAN,
2 KAVITHA SOMASEKHARAN,
AGED 38 YEARS, TC 21/570(2),
SARANYA, SWAMYVIVEKANANDA LANE, KARAMAN P.O., TRIVANDRUM,
PIN - 695002
3
INDIRA BAI CHELAPPAN,
AGED 82 YEARS
TC 7/727, KRISHNA, MARUTHENKUZHI,
THIRUVANATHAPURAM, PIN - 695030
BY ADVS.
EBIN MATHEW
P.J.MATHEW
AKHILA SHOJI
RESPONDENT/COMPLAINANT:
REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAWAN, BMC ROAD, THRIKKAKARA P.O., ERNAKULAM,
PIN - 682021
DSGI IN CHARGE T.C. KRISHNA.
SMT. MINI GOPINATH FOR CGC.
SRI. M.C. ASHI, PP.
CRL.MC NOs. 5483, 5769 & 6691 OF 2022
2
2025:KER:25744
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.03.2025, ALONG WITH CRL.MC.5769/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NOs. 5483, 5769 & 6691 OF 2022
3
2025:KER:25744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 26TH DAY OF MARCH 2025/5TH CHAITHRA, 1947
CRL.MC NO. 5769 OF 2022
AGAINST THE ORDER/JUDGMENT IN ST NO.47 OF 2022 OF ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (E&O), ERNAKULAM
PETITIONERS/ACCUSED 1 TO 3:
1 M/S HALACAMPUS PRIVATE LIMITED,
ASIATIC BUSINESS CENTER TOWER, KAZHAKUTTOM P.O.,
THIRUVANATHAPURAM, PIN - 695582
REPRESENTED BY ITS DIRECTOR NICKEY JOSEPH KOCHERRY
2 ABRAHAM ROY MATHEW,
AGED 34 YEARS, S/O ROY ABRAHAM MATHEW,
AREEKAKIZHAKKETHIL HOUSE, PUTHENPEEDIKA,
OMALLOOR P.O. PATHANAMTHITTA, PIN - 689647
3 NICKEY JOSEPH KOCHERRY,
AGED 33 YEARS, S/O OUSEPPACHEN JOSEPH KOZHERRY,
PLOT NO.171, GEETHANAGAR SOCIETY,
OPP SWAMINARAYAN GURUKUL, GHOGHA ROAD
AKWADA BHAVNAGAR TAKTHESHWA, RBHAVNAGAR,
GUJARAT, PIN - 364002
4 RAHUL RAJEEV SRINILAYAM,
AGED 34 YEARS, S/O RAJEEV SRINILAYAM
SRINILAYAM MULAKUZHA(PART), KARAKKAD P.O.,
CHENGANNUR, ALAPPUZHA, PIN - 689504
BY ADVS.
EBIN MATHEW
P.J.MATHEW
AKHILA SHOJI
CRL.MC NOs. 5483, 5769 & 6691 OF 2022
4
2025:KER:25744
RESPONDENT/COMPLAINANT:
REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAWAN, BMC ROAD,
THRIKKAKARA P.O., ERNAKULAM,
PIN - 682021
DSGI IN CHARGE T.C. KRISHNA.
SMT. MINI GOPINATH FOR CGC.
SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
26.03.2025, ALONG WITH CRL.MC.5483/2022, 6691/2022, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NOs. 5483, 5769 & 6691 OF 2022
5
2025:KER:25744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 26TH DAY OF MARCH 2025/5TH CHAITHRA, 1947
CRL.MC NO. 6691 OF 2022
AGAINST THE ORDER/JUDGMENT IN ST NO.81 OF 2022 OF ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (E&O), ERNAKULAM
PETITIONERS/ACCUSED 1 TO 3:
1 M/S MADARIS IMPEX PRIVATE LIMITED,
XVI/157, VALIYAVEETIL BUILDING, NADACKAL P.O., ERATTUPETTA,
KOTTAYAM DISTRICT, PIN - 686121
REPRESENTED BY MUJEEBUDEEN,
2 SHALIN MUJEEBUDEEN,
AGED 37 YEARS, D/O HABEEB,
PUTHENVEETTIL HOUSE, ERATTUPETTA, NADACKAL P.O., MEENACHIL,
KOTTAYAM, PIN - 686121
3 MUJEEBUDEEN,
AGED 42 YEARS, S/O ABDULKHADIR,
PUTHENVEETTIL HOUSE, ERATTUPETTA, NADACKAL P.O., MEENACHIL,
KOTTAYAM, PIN - 686121
BY ADVS.
EBIN MATHEW
P.J.MATHEW
AKHILA SHOJI
RESPONDENT/COMPLAINANT:
REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAWAN, BMC ROAD, THRIKKAKARA P.O., ERNAKULAM,
PIN - 682021
BY ADV SRI.MANU.S, CGC
SRI. M.C.ASHI, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.03.2025,
ALONG WITH CRL.MC.5769/2022 AND CONNECTED CASES, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
CRL.MC NOs. 5483, 5769 & 6691 OF 2022
6
2025:KER:25744
ORDER
Dated this the 26th day of March, 2025 Petitioners are the accused in S.T Nos.64, 47 and 81 of 2022 pending on the files of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. The case originated from a complaint filed by the respondent alleging commission of the offence under Section 454(8) of the Companies Act ('the Act' for short). The essential facts, as narrated in Crl.M.C No.5483 of 2022, are as under;
The 1st petitioner is a company registered under the Companies Act of 2013. As per Section 10A of the Act, as amended with effect from 02.11.2018, a company incorporated after the amendment and having a share capital cannot commence business, unless a declaration in Form No. INC-20A is filed by any one of its Directors within 180 days of the date of incorporation of the company. In the petitioner's case, there occurred a short delay in filing the declaration of commencement of CRL.MC NOs. 5483, 5769 & 6691 OF 2022 7 2025:KER:25744 business of the company. Hence, proceedings under Section 454(3), for realisation of penalty, were initiated against the company and its Directors. Thereupon, the petitioners preferred appeals under Section 454(5) against the order imposing penalty. As the order imposing penalty was passed on 20.01.2020, petitioners were not able to file appeal against the order, in time in view of the national lock down imposed for preventing the spread of the COVID-19 pandemic. Hence, the appeal was submitted along with a petition for condonation of delay. Without considering the explanation offered for the delay, the delay petition and consequently the appeal, were dismissed. The petitioners challenged that order before the High Court and the writ petitions were disposed of as per Annexure5 judgment, setting aside the impugned order and directing reconsideration of the appeal on merits, after affording the petitioners an opportunity of hearing. Pending hearing of the appeal, the respondent filed a CRL.MC NOs. 5483, 5769 & 6691 OF 2022 8 2025:KER:25744 complaint under Section 454(8) of the Act. Hence, this Crl.M.C.
2. Learned Counsel for the petitioners submitted that the complaint under Section 454(8) is not maintainable, as the appeals filed under Section 454(5) are pending consideration before the appellate authority. It is pointed out that the appeals are not taken up for hearing, since the system is not enabled to take up appeals which were dismissed once. It is contended that the complaints under Section 454(8) can be filed only after expiry of a period of 90 days from the date of receipt of a copy of the order issued under sub-section 3 or sub-section 7 of Section 454. In the case at hand, the complaints are filed based on the dismissal of the appeals, without taking note of the fact that the appellate orders are set aside by this Court and the appeals restored to file.
3. According to the learned Senior Panel Counsel, going by the wordings of Section 454(8), a CRL.MC NOs. 5483, 5769 & 6691 OF 2022 9 2025:KER:25744 complaint can be filed if the order under Section 454(3) is not complied within 90 days. In the cases under consideration, the complaints were filed after expiry of 90 days from the date of dismissal of the appeals and were maintainable at that point of time.
4. From the arguments advanced, the following undisputed facts emerge;
The petitioners had challenged the orders under Section 454(3) by filing appeals under Section 454(5). The appeals were dismissed on the ground of delay. The writ petitions filed challenging those orders were allowed by this Court and the appeals directed to be reconsidered on merits. The appeals are yet to be considered.
5. Going by Section 454(8), the cause of action for filing a complaint would arise only after 90 days of the order, if no appeal is preferred within that time and if an appeal is preferred, after 90 days of the order passed in the appeal. Indisputably, the appeals CRL.MC NOs. 5483, 5769 & 6691 OF 2022 10 2025:KER:25744 filed by the petitioners are still pending consideration. Being so, the complaints alleging non-compliance of the original orders are not maintainable.
The Criminal Miscellaneous Cases are hence allowed and Annexure6 complaints and all further proceedings thereon, quashed. The respondent is at liberty to file fresh complaints, if so warranted.
Sd/-
V.G.ARUN JUDGE ARK CRL.MC NOs. 5483, 5769 & 6691 OF 2022 11 2025:KER:25744 APPENDIX OF CRL.MC 5483/2022 PETITIONER ANNEXURES ANNEXURE1 A TRUE COPY OF THE DECLARATION FOR COMMENCEMENT OF BUSINESS FILED IN FORM NO INC-20A ANNEXURE2 A TRUE COPY OF THE ORDER NO ROC/S-454/10A/ /2020 DATED 20/01/2020 PASSED BY THE RESPONDENT ANNEXURE3 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS IN THE PRESCRIBED FORM ADJ ANNEXURE4 A TRUE COPY OF ORDER DATED 22/10/2021 ISSUED BY THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS, CHENNAI ANNEXURE5 A TRUE COPY OF THE JUDGMENT DATED 08/03/2022 IN WPC 3969 OF 2022 OF THIS HON'BLE COURT ANNEXURE6 CERTIFIED COPY OF COMPLAINT FILED BY THE RESPONDENT WHICH WAS NUMBERED AS ST 64/2022, ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT, ERNAKULAM CRL.MC NOs. 5483, 5769 & 6691 OF 2022 12 2025:KER:25744 APPENDIX OF CRL.MC 6691/2022 PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE DECLARATION FOR COMMENCEMENT OF BUSINESS FILED IN FORM NO INC-20A ANNEXUREA2 A TRUE COPY OF THE ORDER NO NO.ROC/S-
454/10A/79/2020 DATED 13/01/2020 PASSED BY THE RESPONDENT ANNEXUREA3 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS IN THE PRESCRIBED FORM ADJ ANNEXUREA4 A TRUE COPY OF ORDER DATED 22/10/2021 ISSUED BY THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS, CHENNAI ANNEXUREA5 A TRUE COPY OF THE JUDGMENT DATED 24/06/2022 IN WP(C) NO. 20229 OF 2022 OF THIS HON'BLE COURT ANNEXUREA6 CERTIFIED COPY OF COMPLAINT FILED BY THE RESPONDENT WHICH WAS NUMBERED AS ST 81/2022, ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT, ERNAKULAM CRL.MC NOs. 5483, 5769 & 6691 OF 2022 13 2025:KER:25744 APPENDIX OF CRL.MC 5769/2022 PETITIONER ANNEXURES ANNEXURE1 A TRUE COPY OF THE DECLARATION FOR COMMENCEMENT OF BUSINESS FILED IN FORM NO INC-20A ANNEXURE2 A TRUE COPY OF THE ORDER NO ROC/S-454/10A/ /2020 DATED 20/01/2020 PASSED BY THE RESPONDENT ANNEXURE3 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS IN THE PRESCRIBED FORM ADJ ANNEXURE4 A TRUE COPY OF ORDER DATED 22/10/2021 ISSUED BY THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS, CHENNAI ANNEXURE5 A TRUE COPY OF THE JUDGMENT DATED 01/07/2022 IN WP(C) NO. 16869 OF 2022 OF THIS HON'BLE COURT ANNEXURE6 CERTIFIED COPY OF COMPLAINT FILED BY THE RESPONDENT WHICH WAS NUMBERED AS ST 47/2022, ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT, ERNAKULAM