TaxTMI 
TaxTMI 
2013 (4) TMI 538
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....ent No. 2 herein-original complainant pending in the court of learned Additional Chief Metropolitan Magistrate, Ahmedabad. 2. Respondent No. 2-original complainant-Assistant Registrar of Companies, Ahmedabad has instituted/filed the impugned complaint, being Criminal Case No. 610/1999 in the court of learned Additional Chief Metropolitan Magistrate, Ahmedabad against the petitioner and others for the offence punishable under section 150(1) read with section 150(2) of the Companies Act, 1956 ('the Act'). In the said complaint, it is alleged that original accused No. 1 is the company and original accused Nos. 2 to 8 were the directors of original accused No. 1-company. It is further alleged that inspection was carried out under section 290....
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.... the Act, the petitioner cannot be said to be "Officer in default" and, therefore, it cannot be said that the petitioner has committed any offence as alleged. It is submitted by Shri Majmudar, learned advocate appearing on behalf of the petitioner-original accused No. 6 that in a case where the company does not have any officer specified in clauses (a) to (c) of section 5 of the Act then and then only any other director who may be specified by the Board and where no director is so specified, all the directors can be held liable for the offence of the default alleged to have been committed by the 'Officer who is in default' of company. 5. Shri Majmudar, learned advocate appearing on behalf of the petitioner has heavily relied upon the dec....
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....f the Rajasthan High Court, the Department of Company Affairs had in fact issued a circular that in case when breach is alleged to have been committed by the company and the concerned 'Officer who is in default', in that case if the company had already appointed the managing director, whole-time directors, managers in that case the prosecution is not to be initiated against ordinary director and, therefore, considering the above, it is requested to pass an appropriate order considering the facts and circumstances of the case. 8. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No. 2 had instituted the impugned criminal proceedings against origin....
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....) any person in accordance with whose directors or instructions the Board of directors of the company is accustomed to act ; (f) any person charged by the Board with the responsibility of complying with that provision : Provided that the person so charged has given his consent in this behalf to the Board ; (g) where any company does not have any of the officers specified in clauses (a) to (c), any director or directors who may be specified by the Board in this behalf or where no director is so specified, all the directors : Provided that where the Board exercises any power under clause (f) or clause (g), it shall, within thirty days of the exercise of such powers, file the Registrar a return in the ....
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....not be any prosecution against the petitioner who was an ordinary director of original accused No. 1-company as he cannot be said to be "officer who is in default". 12. An identical question came to be considered by the Rajasthan High Court, in the case of Ravindra Narayan (supra) as well as Andhra Pradesh High Court in the case of Smt. G Vijayalakshmi (supra) and considering section 5 of the Act it is held that the Directors are Officer in default only where company does not have managing director, whole-time director or manager. It is also required to be noted that even considering the decision of the Rajasthan High Court in the case of Ravindra Narayan (supra) the Department of Company Affairs have also issued Circular No. 6/1994 [F. ....