1994 (3) TMI 284

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....e relevant for the disposal of this petition are that P.C. Wadhwa, respondent, filed a complaint under section 72 of the Companies Act, 1956 ('the Act') against the petitioner alleging that Indana Spices & Food Industries Ltd. floated debentures in August 1991. He applied for 10 debentures of the company and issued cheque for a sum of Rs. 3,000 bearing No. 569179 dated 9-8-1991 on Haryana State Co-operative Apex Bank Ltd., Sector 28D, Chandigarh for the purchase of the debentures. The application form and cheque were deposited with the Canara Bank. Debentures were, however, not allotted to him within stipulated period. On non-allotment of debentures, the company was required to refund the amount of Rs. 3,000 within eight days of the expiry ....

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....iled by the respondent. 4. I have heard Mr. Rajiv Kataria, the learned counsel for the petitioner and Mr. P.C. Wadhwa, respondent and have perused the record. 5. It was argued on behalf of the petitioner that the complaint Annexure P/7 was liable to be quashed as the allegations made therein did not disclose the commission of any offence by the petitioner nor the com-plainant had any locus standi to file the complaint. The petitioner against whom the complaint had been filed could not be punished under section 73 as the complaint was not maintainable against him. He referred to section 621 of the Act which runs as under: "Offences against Act to be cognizable only on complaint by Registrar, shareholder or Government.-(1) No Court shall t....

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....e Registrar or by a shareholder of the company or by a person authorised by the Central Government in that behalf. The respondent was neither a shareholder nor he was authorised by the Central Government to file the complaint. Even if debentures had been allotted to him still, he could not become a shareholder of the company unless he held the shares. 6. The contention of the learned counsel for the petitioner is quite tenable. Under the Act a protection is given to the companies from frivolous and malicious prosecution hatched by any person who has no locus standi to file a complaint. In case any person is aggrieved of any act of the company and he is not a shareholder of the company, then the only remedy open to him is to approach the Re....

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....pany who was an 'officer in default' shall be punished. An officer in default has been defined in section 5 of the Act, which is as under: "Meaning of 'officer who is in default'.- For the purpose of any provision in this Act which enacts that an officer of the company who is in default shall be liable to any punishment or penalty, whether by way of imprisonment, fine or otherwise, the expression 'officer who is in default' means all the following officers of the company, namely:- (a)the managing director or managing directors; (b)the whole-time director or whole-time directors; (c)the manager; (d)the secretary; (e)any person in accordance with whose directions or instructions the board of directors of the company is accustomed to act....