1994 (1) TMI 213

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....inga Advertising and Market-ing (P.) Ltd. ('the Company') and five different individuals including the respondent (each of them being described as Director except one P.K. Das who was described as Managing Director) on the allegation that the balance sheet of the company was not filed in time as required by sub-section (1) of section 220 for which each of them committed an offence punishable under sub-section (3) of section 220. The said complaint was registered as 2(c) Civil Case No. 48 of 1980 in the Court of the Additional Chief Judicial Magistrate-cum-Special Court, Cuttack. After taking cognisance under sub-section (3) of section 220, the learned Magistrate issued summons. As presence of other accused persons except the respondent coul....

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....rd and heard further the learned counsel for the respondent. 5. The moot question which arises for consideration in this appeal is whether the respondent could be held to be an officer of the company in default in complying with filing of the balance sheet in time. 6. The provisions of sub-sections (1) and (2) of section 220 require copies of the balance sheet and profit and loss account to be filed with the Registrar within 30 days from the date on which the balance sheet and the profit and loss account were laid at the annual general meeting of the company or where no such meeting has been held within 30 days from the latest day on or before which that meeting should have been held in accordance with the provisions of the Act. Sub-secti....

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.... default', as it stood prior to 1988 amendment, came up for consideration before the Calcutta High Court in Ajit Kumar Sarkar v. Assistant Registrar of Companies 1979 Tax LR 2001. It was a case where validity of the order passed by the Metropolitan Magistrate taking cognizance was challenged by some directors of a company. The learned Judge in paragraphs 7 and 8 of the judgment by referring to section 5 of the Act observed that 'officer in default' means 'an officer who is knowingly guilty of default' and it was incumbent on the prosecution to fix the liability with the particular 'officer in default' and in absence of any such specific averment in the complaint, the statutory obligation to file annual report cannot be imposed on any direct....