TaxTMI 
TaxTMI 
2008 (7) TMI 566
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....1956, read with rule 11(a)(23) of the Companies (Court) Rules, 1959, to relieve the petitioners from criminal prosecution pursuant to the show-cause notice issued by the first respondent in No. 6423/CI/209A/628/2001, dated 27-7-2001, was denied. 2. The facts, which led the petitioners/appellants to file the said appeal were that the first petitioner is the managing director of M/s. First Leasing Co. of India Ltd., and the second petitioner is formerly the company secretary of the said company between 4-10-1994 and 15-11-2001. The books of account and registers of the said company were made under section 209A of the Companies Act, 1956 and the inspection report was submitted on 1-5-2000. Certain violations of mandatory provisions of the C....
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.... submitted on 3-7-1997, 18-5-1998 and 21-5-1999, respectively. It is true that the inspection was made. Following the inspection report dated 1-5-2000, all the defects were noticed. Immediately, a letter was written to the Registrar of Companies on 9-8-2000, i.e., within a few months from the receipt of the inspection report, wherein all the necessary details and particulars were given. Following the same, on 13-6-2001, a revised return was made, whereby all the mistakes, which were pointed out by the authorities, were rectified. But when the show-cause notice was issued on 27-7-2001, neither the letter addressed to the Registrar of Companies dated 9-8-2000, nor the revised return dated 13-6-2001, was referred to, but it has proceeded that ....
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....s crept in and in a case where the acts committed by the petitioners were deliberate or dishonest, it has got to be decided only on adducing evidence before the court of law. But, in the instant case, it is quite clear that the acts of the petitioners are violative of the mandatory provisions. Thus, the learned Single Judge was perfectly correct in refusing to exercise discretionary power vested upon the court, and hence, the appeal has got to be dismissed. 6. The court has paid anxious consideration on the submissions made by learned counsel on either side. 7. It is not in controversy that a show-cause notice as referred to in the petition dated 27-7-2001, was served on the appellants. They immediately gave a reply whereby there was ....
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....rept in" and it is needless to say that the powers vested upon this Court under section 633 of the Companies Act, 1956, to grant the relief is, firstly, discretionary. Secondly, the petitioners have to satisfy the following conditions stipulated under section 633(1) of the Act : (1)the lapse or offence alleged must be one of the kinds mentioned in section 633(1); (2)the applicant must be shown to have acted honestly and reasonably; and (3)the court is in a position to conclude or render the finding with regard to all the circumstances of the case, that the officer ought to be excused fairly. 8. In order to exercise the discretionary power under section 633(2), all the conditions under section 633(1) of the Act must be satisfied.....