AI Drafter 
TaxTMI 
TaxTMI 
2019 (1) TMI 1759
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....suance of process dated 24.5.2002 and the issuance of summons dated 3.11.2015 and prays that all proceedings and the orders are to be set aside in Criminal Case No.3847/SS/15 from the Court of Metropolitan Magistrate, 18th Court, Girgaum, Mumbai. Respondent No.2, the Registrar of Companies, has filed this complaint under section 295 (4) of the Companies Act, 1956 for contravention of section 295 (4) of the Companies Act (for short, hereinafter referred to as 'the Act'). U/s 295(4) of the Act, a company needs to take prior sanction for giving loans to the other parties. However, there is a violation of the provisions under section 295 of the Act as the loans were disbursed by accused No.1 company to its sister concern. Accused Nos.7 and 8....
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....used No.8 and Rs. 26 lakhs has been shown as amount due from Shakun Mulchanani and Kabir Mulchandani of M/s.Sprite Electronics Private Ltd. of which accused Nos.2 and 3 are the directors. The petitioner is not connected with those companies. 4. They held the position of Directors in these two companies. Thus, both accused Nos.1 and 2 are the ones, who were active in disbursement and maintaining the books of accounts. He further submitted that as per the Advocates Act, the applicant/accused, being an advocate, is not supposed to sign any balance sheet or cannot be a witness in any proceedings. Moreover, a mere signature is not to be taken that he had approval and knowledge about such disbursement of loans and whether this disb....
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....on and the trial Court ought not to have taken cognisance of this complaint. 6. In support of his submissions, he relied on the judgments in Srikumar Menon and Ors. vs. Registrar of Companies. (MANU/WB/0525/2011); Atul B. Munim vs. Registrar of Companies & Ors. (1999 SCC Online Bom 893) and in Homi Phiroz Ranina & Ors. vs. State of Maharashtra & Ors. (2003 (3) Mh.L.J. 34) 7. Mr.Singh, the learned Counsel appearing for Respondent No.2, while opposing this application has submitted that at the stage of issuance of process, the learned Judge has to only consider the averments made in the complaint. In the present case, the petitioner is admittedly a Director of the said company. It is also admitted that the loans were disbursed to the re....
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....was filed, however, objection was raised on the ground that it was barred by limitation under section 468 of the Code of Criminal Procedure. The learned Single Judge of the Calcutta High Court held that under section 469(3) of the Code of Criminal Procedure, the period of limitation in relation to offence shall commence on the day, when such offence came to his knowledge of the aggrieved person. In that case, therefore, if the Central Government is aggrieved by the act of company then, the date of inspection was considered as the date of knowledge to the Central Government and from that date, the limitation was to be computed. 10. In the case of Atul B. Munim vs. Registrar of Companies & Ors (supra), a learned Single Judge of this Court ....
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....r in the case in hand. The applicant is also a practising advocate and solicitor. So, he could only act as non-executive Director unless specific material is brought on record, the liability of a principal or active Director cannot be fixed on him. Admittedly, he is not a signatory to the cheque, which is the subject matter of the complaint. 12. In R.M. Subramaniam & Ors. vs. Inspector of Labour, Tiruchirapalli (supra), a revision was preferred against conviction under the Industrial Disputes Act. A learned Single Judge of the Madras High Court in that case has held that where notice of prosecution for an offence has been given and where previous sanction of the government is required, the period of such notice and the time spent for ....
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....ded at the stage of trial. In the said case, in November, 2015, the prospectus was sent in November, 1995 and the issue was opened on 29.1.1996 and closed on 8.2.1996 and the complaint was filed 6 years thereafter i.e., in the year 2002, though the period of limitation was 3 years. 14. In the present case, the inspection was carried on 3.11.1999 by the Income Tax department and the complaint was filed in May 2002. The view taken by the Madras High Court in the case of R.M. Subramaniam (supra) is different than the view taken by the Bombay High Court. However, it is also true as laid down in the case of Bhupinder Kaur Singh (supra), it is a matter of mixed question of law and facts. Therefore, this issue can be kept open in the complai....