2014 (6) TMI 1087 - HC - Companies Law

Company Law Board's discretion to refuse compounding under Section 621-A(1) cannot be exercised arbitrarily unless public interest demands

Union of India, Delhi Versus Tech Mahindra Limited, Hyderabad

The Telangana HC dismissed appeals challenging the Company Law Board's decision to compound offences under Section 621-A(1). The court held that ... Discretion of Company Law Board under Section 621-A(1) of the Act not to accept the request of the accused for compounding the offences - whether on the facts of the case, the accused are entitled to have their offences compounded? - HELD THAT:- Where a penal provision is made compoundable, ordinarily, the accused have an option to seek compounding of the offence rather than contesting the case and inviting a Judgment on merits. Assuming that the court or the authority conferred with the power of such composition has discretion not to compound the offence, such discretion cannot be exercised arbitrarily. Unless public interest compels such authority not to accept the request for composition of an offence, such a request cannot be refused. It is worth noticing that in the present case, it is only the company and its Chartered Accountant who are arraigned as accused Nos.1 and 4 respectively in both the cases, who have filed the applications for composition. The Chairman, the Managing Director and the whole-time Director who are accused in these cases and also the main cases filed for fudging or falsification of accounts, have not applied for composition. This Court, indeed is unable to appreciate the conduct of the appellant herein in needlessly filing these appeals knowing well that accused Nos.1 and 4 have no complicity in the alleged commission of the scam with respect to which separate prosecution has been launched. Such conduct on the part of the appellant would only encourage frivolous and vexatious litigation and discourage entrepreneurs with positive approach to undertake the arduous task of resuscitating the discredited companies such as the company in question. On the analysis as above and for the reasons mentioned which are supplied to fortify the conclusions of the Company Law Board, the appeals must fail. The Registrar of Companies, who is stated to have already received penalty from accused Nos.1 and 4 and issued Form-21 is directed to inform the learned Special Judge for Economic Offences, Hyderabad before whom C.C.Nos.394 and 400 of 2009 are pending about the composition of the offences qua accused Nos.1 and 4 as envisaged under Section 621-A(3)(d) of the Act within one week from the date of receipt of this order. This Court will have a qualm of conscience if it does not place on record its thorough dissatisfaction at the manner in which the Company Law Board has dealt with the case - the Company Appeals are dismissed with costs of Rs. 10,000/- in each appeal. Issues Involved:1. Discretion of the Company Law Board under Section 621-A(1) of the Companies Act, 1956 to compound offences.2. Entitlement of the accused to have their offences compounded based on the facts of the case.Issue-wise Detailed Analysis:1. Discretion of the Company Law Board under Section 621-A(1) of the Companies Act, 1956:The central issue was whether the Company Law Board (CLB) possessed the discretion under Section 621-A(1) of the Companies Act, 1956, to refuse the compounding of offences. The Court noted that the CLB failed to address this issue despite a clear directive from the High Court to consider it. The appellant, Serious Fraud Investigation Office (SFIO), also neglected to appear and contest the applications, contributing to the oversight. The Court chose not to delve into this issue further, proceeding on the premise that the CLB indeed has the discretion to refuse compounding of offences. The judgment emphasized that if such discretion exists, it cannot be exercised arbitrarily and must align with public interest considerations.2. Entitlement of the accused to have their offences compounded:The second issue revolved around whether the accused were entitled to have their offences compounded based on the case facts. The accusations involved violations of Sections 309 and 220(1) read with Section 162 of the Companies Act, 1956, for which specific penalties were not stipulated, thereby invoking Section 629-A of the Act. The Court highlighted that the accused were not charged with any offences under the Indian Penal Code, and no mens rea was attributed to them for the alleged violations. The reliefs sought in the complaints primarily involved fines and, in one case, a refund of professional fees.The Court observed that the accused, specifically the Company and its Secretary, were not implicated in the larger fraud cases involving the company's former directors. The new management, Tech Mahindra, had revitalized the company post-fraud, and the accused were not involved in the fraudulent activities. The Court found no reasonable grounds for the appellant to oppose the compounding requests, as the offences were not committed with wrongful intent or to defraud stakeholders.The judgment underscored that compounding of offences typically provides an option for the accused to resolve matters without contesting the case. It noted that the refusal to compound the offences would be prejudicial to the interests of the accused and contrary to public interest, as it would hinder the company's reconstitution efforts. The Court criticized the SFIO's appeals as frivolous and vexatious, given the lack of complicity of the accused in the fraud.Ultimately, the Court dismissed the appeals, affirming the CLB's decision to compound the offences and directing the Registrar of Companies to inform the Special Judge for Economic Offences about the compounding. The judgment also expressed dissatisfaction with the CLB's handling of the case post-remand, urging the Ministry of Corporate Affairs to monitor the CLB's performance closely. The appeals were dismissed with costs, and related interim applications were deemed infructuous.