1999 (12) TMI 882

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....allard Estate, Bombay 38, had issued prospectus dated 8.4.1994 for issued of its shares which were applied for subscription by the members of the public and though the applications were sent to the Company along with the application money, the allotment letters were not issued nor application money was refunded to them within the prescribed period. The issue was opened on 5.5.1992 and was to be closed on 8.5.1992 but not later than 15.5.1992. It is further alleged that some of the subscribers had received allotment letters but did not receive the share certificates about which several complaints were received by the Registrar of Companies and, therefore, the Registrar of Companies issue show-cause notice dated 12.10.1993 to the Company. Alt....

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....s on "the Company and every director of the company, who is an officer in default. The officer in default has been defined in Section 5 of the Companies Act, which means: (a) the managing director or managing directors; (b) the whole-time director or whole-time directors; (c) the manager; (d) the secretary; (e) any person in accordance with whose directions 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 offic....

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....d as follows: Where penal provisions of the Companies Act provide for punishment of officers in default, prosecution is to be filed against managing director/whole-time director/manager, apart from secretary, if any, and company. It is only where there is no such managerial personnel prosecution is to be filed against all directors, apart from secretary, if any, and the Company. 6. From the averments made in the petition, which are not denied by the Respondent No. 1, though served, it is clear that the Company did have an Executive and whole-time Director and, therefore, the petitioner, as an alternate Director, was not liable to be prosecuted for the contravention of Section 73(2A) and (3) of the Companies Act. In the aforesaid circu....