AI Drafter 
TaxTMI 
TaxTMI 
2020 (4) TMI 419
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.... to direct DIN CELL, Ministry of Corporate Affairs, New Delhi, for cancellation of Directors Identification Number; to direct the -Registrar of Companies, Karnataka, Bangalore, to initiate criminal investigation for fraud under Section 447 of the Companies Act, 2013 as against the 2nd and 3rd Respondent, etc. 2. Brief facts of the case, as mentioned in the Petition/ Application, which are relevant to the issue in question, are as follows: 1) M/s. Colour Books Associates Private Limited (herein after referred to as Company) was incorporated on 14.05.2018 under the Companies Act, 2013 bearing CIR U74999KA2018PTC113093 having registered office at 49/24,3rd Floor, 11th C Cross, Kodandaramapuram, Malleshwaram, Bangalore-560003. 2) The Petitioner and the Respondent No. 2 are wife and husband, and both are alleged to be Shareholders and first Directors of the R-1 Company. The Petitioner and second Respondent were married on 20.05.2015, which has become strained relationship between them. The Petitioner has filed First Information Reports on 15.12.2017, 29.01.2018 and 26.02.2018 under Sections .2394(b), 506(1), 498(A), 294(b), 406, 506(1) & 354D of the India Penal Code....
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.... Bengaluru which bounced and compelling the Petitioner to pay the cheque mentioned amounts. 4) It is also stated that on 05.06.2018, the R-1 Company through Mr. S. Manikandan, Advocate has caused to issue three more notices u/ s 138 of the Negotiable instruments Act as against this Petitioner on behalf of his clients namely a) M/s.VXT Garments, C/o. Ramesh, residing at 1/2C Murugankoil Street, Tirupur-638752 b) M/s. Tirumala Tours and Travels, C/o Tiruvel, residing at #48, 2nd Floor, Opp. Srinivas Restaurant Old Post Office Road, Tirupur-641602 and c) M/s. Vedhapuri Textiles C/o karunanithi, Door No. 227, ThambuChetty Street, Parrys, Chennai-600001 again accusing the Petitioner as though she has borrowed monies from them and in consideration of the said borrowing had issued three cheques all drawn on HDFC Bank, Kumbakonam Branch, Tamilnadu which bounced and compelling the Petitioner to pay the cheque mentioned amounts. Necessary replies were given to the aforesaid 3 notices. The Petitioner has no account with the said HDFC Bank at Kumbakonam or any other place in India and she has promptly lodged necessary complaints with the Bank to which it has replied ....
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....4.05.2018 as against the complaint, which is atrocious and ridiculous. 7) It is stated that the Petitioner firmly believes that the 1st Respondent-Company have been incorporated by rank forgery, misleading the Authorities by manipulation, misuse of her personal documents wherein she has not agreed, consented nor signed in any of the incorporation documents as required under law. The Petitioner understand that for incorporation of a private limited company, a person has to give his/her consent to act as its Promoter and Director and self-attest PAN CARD, AADHAAR CARD etc. The Petitioner also understands that Respondent No.2 has manipulated the 4th Respondent-Authorities incorporated a fraudulent company with her consent either express or written behind her back. The Petitioner reiterates that she has not signed in any of the applications, statutory forms, documents or records pertaining to incorporation and also not obtained the Digital Signature in her name. The Respondent No.2 had fraudulently obtained Digital Signature and falsely submitted the Digital Signature application form and committed forgery by using the said Digital Signature Certificate. The Petitioner on 26.0....
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....gnature of the Petitioner is also false and denied. 3) He is not aware of spate of cheque dishonor cases filed against the Petitioner before the Magistrate courts at Bangalore and Hosur, Tamil Nadu and the allegations in this regard is absolutely false and the same is hereby denied, and the applicant may be put to strict proof of the same 4) It is true that he was arrested by All women police Station, Srirangam, Tiruchirapalli Tamil Nadu, in Cr.No.30/2018 for the offences punishable under Sections 498-A, 294-B, 406, 506(1), 354-D of Indian Penal Code and under Section 4 of the Prohibition of Harassment of Woman Act, 2002, , since the Petitioner at the behest of her father has given a false complaint against the Respondent by making several false and baseless allegations against the Respondent further the Petitioner and her father got the Respondent arrested by using his influence. The allegations that the Petitioner was shocked to know that the second Respondent has perpetuated a fraud upon the Petitioner by including her name without her permission and knowledge as one of the first Directors of the First Respondent is absolutely false and the same is denied and t....
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....ontending as follows: 1) It is stated that the Petitioner has approached this Tribunal with unclean hands and she has not only suppressed material facts in order to make the case tailor - made for her requirement as against the 3rd Respondent, but she is also guilty of the principle 'suppreciovarisuggestiofalsi' and on this ground alone, the present petition is liable to be dismissed in limine. 2) It is denied that regarding the marriage between the Petitioner and the 2nd Respondent and the girl child born to them is known to the 3rd Respondent. This was disclosed by the 2nd Respondent himself when he visited the 3rd Respondent's office for incorporation of a Company. However, the custody of the child is not known to the 3rd Respondent. 3) It is stated that the 2nd Respondent approached the 3rd Respondent seeking his professional services for incorporating a Private Limited Company. The 2nd Respondent informed the 3rd Respondent that he and his wife i.e., Petitioner intended to incorporate a Private Limited Company and sought for the 3rd Respondent's professional services. He has had clearly informed the 2nd Respondent that the presence of....
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....er daughter is totally denied as false and is the same is misleading and such an allegation tantamount to defaming a professional by the Petitioner. 6) It is stated that he has discharged his professional duty without mala fide intention and the allegations made by the Petitioner is untenable and baseless, and thus the Company Petition is liable to be dismissed. 4. The Registrar of Companies i.e., the Respondent No.4 has filed counter dated 22nd July, 2019 by inter alia contending as follows: 1) It is stated that the ROC i.e., 4th Respondent is not contesting Respondent and therefore he is confined only to the averments made in respect of incorporation of the M/s.Colour Books Associates Private Limited i.e., 1^st Respondent. As per the record of this office, the 1st Respondent Company was incorporated on 14.05.2018 in the state of Karnataka with CIN U74999KA2018PTC113093 and registered office is situated at 49/24, 3rd Floor, 11th C Cross, Kodandaramapuram, Malleswaram Bangalore, Karnataka-560003. As per the Memorandum of Association of the Company, the promoter/ subscriber to the Memorandum is Shri Sundaram Chockilingam, the 2nd Respondent and Smt. Nagappan Swa....
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.... to the marital dispute between the Petitioner and the 2nd Respondent and to cases filed under Negotiable Instrument Act, which are not within the knowledge of this Respondent, hence no comments are offered. 5. Heard Shri S. Shiv Shankar along with Shri M. Rathina Kumar, learned Counsels for the Petitioner and Shri L. Mallesh, learned Counsel for Respondent No. 1 & Respondent No.2 and Shri Kumar M.N. learned Standing Counsel for R-4. We have carefully perused the pleadings of the parties and extant provisions of the Companies Act, 2013. 6. The main issue arise for consideration in the instant Company Petition is whether the incorporation of the R-1 Company was done in accordance with extant provisions of Law with due consent of the Petitioner or not. 7. It is relevant to refer relevant provisions of the Companies Act 2013 with regard to procedure for incorporation of a Company. Section 7 of the Act is relevant provisions for the same, which reads as under : 1) "There shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be suited, the following documents and information for registration, namely:- a. ....
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....Respondent No. 3 has clearly admitted in his reply that he has not witnessed the Petitioner to sign relevant documents required for incorporation of the Company. And also contended that by believing the version of second Respondent that the petitioner/ wife was having kid and thus she was incapacitated to come physically present before him, has given the requisite forms for incorporation to him for obtaining signatures of his wife. The Respondent No.3 i.e., Mr. R. Madesh Nayak, A.C.A. Chartered Accountant admits that he was required to take declaration required for incorporation of the Company by physical verification of the person who signed the requisite documents. Therefore, the requisite documents furnished by the Second Respondent was uploaded for incorporation of the R-1 Company. However, the certified copies of Incorporation of Respondent No. 1 Company produced by the Petitioner includes C.C.No.1553 of 2018 dated 10.05.2018, Form SPICe MOA (INC-33) C.C. No.1552 of 2018 dated 26.04.2018, Form SPICe MOA (INC-33) C.C.N0.1549 of 2018 dated 10.05.2018, Form SPICe AOA (INC-34) C.C.N0.1550 of 2018 dated 26.04.2018 and Form SPICe AOA (INC-34) C.C.N0.1551 of 2018 dated 10.05.20....
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....ross, Madivala, Bangalore-560068 who is engaged in the formation of the Company declare that I have been duly engaged for the purpose of certification of this form. It is hereby also certified that I have gone through the provisions of the Companies Act, 2013 and rules thereunder for the subject matter of this form and matters incidental thereto and I have verified the above particulars (including attachments) from the original/ certified records maintained by the Applicant which is subject matter of this form and found them to be true, correct and complete and no information material to this form has been suppressed. I further certify that: (i) The draft memorandum and articles of association have been drawn up in conformity with the provisions of sections 4 and 5 and rules made thereunder; and (ii) All the requirements of Companies Act, 2013 and the rules made thereunder relating to the registration of the company under section 7 of the Act and matters precedent or incidental thereto have been complied with. The said records have been properly prepared, signed by the required officers of the Company and maintained as per relevant provisions of the Companies Act,....