TaxTMI 
TaxTMI 
2011 (2) TMI 1261
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....he date of order (8-2-2002). 2. Upon order of winding up the Company, statement of affairs was to be filed as required under section 454 of the Companies Act, 1956 ('Co. Act'), which as alleged, was not done within prescribed time; as such the Official Liquidator (applicant) has filed complaint through instant application under section 454(5) of Companies Act. As per records maintained by Registrar of Companies, there were Three Directors of the Company (including two respondents herein and third Director was a nominated Director of the RIICO) on the date of winding up order. 3. After the permission was granted for initiating necessary prosecution under section 454(1) of the Companies Act against ex-Directors of the Company except Ran....
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.... provisions while not filing statement of affairs of the Company, complaint through instant application has been filed imputing them liable for punishment under section 454(5) of Companies Act. 6. However, it appears from the record that after inspection of records being permitted by complainant (OL) vide letter dated 6-6-2005 (EX.P13) and made by them on 16-6-2005, statement of affairs was submitted by respondents on 30-6-2005. 7. This Court took cognizance of the offence and summoned the respondents on notices being issued vide order dated 23-4-2004 under section 254, Cr.PC and upon which, they pleaded not guilty and evidence of complainant was recorded - but much before statement of complainant being recorded on 5-3-2009, statement....
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.... on being cross examined by defence counsel, the witness stated that he was not holding any record, his statement was completely vague being based on documentary evidence and even on account of vagueness in statement at the stage of cross examination, it may not be of any material effect to the prosecution case. 10. Be that as it may, it was an admitted position from the prosecution evidence that after communication being sent on 10-10-2003 (Ex.P9), letter was sent by respondent on 21-10-2003 (EX.P12) showing inability due to serious illness of his wife to submit statement of Co.'s affairs and made further request for inspection of the records indisputably lying at factory premises - in response to which, notice was sent only on 6-6-2005....
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.... not exceeding three months from that date, as the Official Liquidator or the court may for special reasons appoint, as referred to in sub-section (4) of section 454. 15. However, sub-section (5) of section 454 prescribes punishment for the default and as per which, if any person, without reasonable excuse, makes default in complying with any of the requirements of the section, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees for every day during which the default continues, or with both. 16. It is relevant to observe that there are certain provisions of the Co. Act having bearing on the case. Section 163 requires that register of members, copies of....
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....t-2) and still made request seeking permission to inspect the records having been kept at the factory premises which was sealed on 27-2-2002 as a consequence upon winding up order being executed; and thereafter a letter was sent by Official Liquidator on 6-6-2005 (EX.P13) pursuant to which respondents were called upon and permitted to inspect the records of the Company on 15-6-2005 and after inspection having been made on 16-6-2005, submitted statement of affairs on 30-6-2005. 19. As set out (supra), sub-section (5) of section 454 of Companies Act clearly postulates that if any person without reasonable excuse, makes default in complying with any of the requirements of this section, is liable for punishment with imprisonment or with fine....