1994 (4) TMI 263

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....b Cement Works (P) Ltd. (now in liquidation and referred to hereinafter as "the company") on the allegations that these accused without reasonable excuse failed to submit to the official liquidator a statement as to the affairs of the company in the prescribed form. The company was incorporated as a private limited company on November 22, 1982. On a petition filed by a creditor under sections 433, 434 and 439 of the Act, it was ordered to be wound up by this court on March 14, 1991, and the official liquidator attached to this court was appointed its liquidator. After the receipt of the winding up order the official liquidator is said to have issued notices to the accused on April 16, 1991, calling upon them to file the statement of affa....

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....ther stated that despite these notices the accused did not file the statement of affairs. According to this witness, the accused never sought extension of time for filing the said statement nor have they shown any cause for not filing the same. He admitted in his cross-examination that the notices sent to the accused came back undelivered. CW-2, the dealing assistant from the office of the Registrar of Companies, Jalandhar, brought with him the summoned record and named the six founder-directors of the company at the time of its incorporation. He also placed on record copies of Form No. 32 indicating the changes that were brought about in the board of directors of the company from time to time. Exhibit CW-2/1 to exhibit CW-2/11 are these fo....

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....uirements of this section he can be punished with imprisonment for a term which may extend to two years or with fine or both. The persons who are required to comply with the requirements of section 454 are those mentioned in sub-section (2) thereof. Sub-section (2) of section 454 of the Act requires that a statement as to the affairs of the company shall be submitted and verified amongst others by one or more of the persons who are at the relevant date the directors of the company. The relevant date, according to sub-section (8) of section 454, means the date on which a provisional liquidator is appointed and in a case where no such appointment is made the date of the winding up order. In the present case, no provisional liquidator was a....

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.... a prudent man. In other words, a default committed for which the accused has a reasonable excuse is not punishable under this provision. The onus of proving that a default was committed and that too without reasonable excuse undoubtedly lies on the prosecution. As observed by a Full Bench of the Delhi High Court in Security Finance Pvt. Ltd. v. B.K. Bedi [1974] 44 Comp Cas 499 , the official liquidator in order to prove the ingredients of the offence under sub-section (5) of section 454 of the Act "need only prove that notice was sent to the concerned director to submit a statement of affairs, that the prescribed time has lapsed and that no extension has been sought for from him or from the court and that the necessary books of the company....