JAMUNA DATWANI (MRS.) Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) The matter is fixed for issue of notice. Mr. Sudhir Makkar, Advocate has appeared for Mrs. Jamuna Datwani, who is also present in person along with her son Mr. Anand Datwani. He submits that Mrs. Jamuna Datwani is an old lady, 73 years of age, who was/is only a house wife and has no knowledge about the affairs of Metlex Ceramics Limited. He has relied upon two judgments of this Court in Securities and Finance Private Limited (in liquidation), 1974 10 DLT 181 and Devindar Kishore Mehra v. Official Liquidator and Ors., 1979 16 DLT 150. My attention is drawn to paragraph 9 of the judgment in the case of Devindar Kishore Mehra , which reads as under:

(2.) The judgment in the case of Securities and Finance Private Limited (in liquidation) is a Full Bench decision. In the said decision, the Full Bench had examined the question whether during pendency of a complaint under Section 464(5) [sic 454(5)] of the Companies Act, 1956 (Act, for short), burden of proof to show reasonable excuse for not filing statement of affairs of the company within prescribed time lies on the prosecution or on the accused. This is clear from paragraph 2 of the judgment and from the last portion of paragraph 8 of the judgment, which read as under:

(3.) The Full Bench examined the view taken by a single Judge of this Court that the prosecution is only to establish the factum that the statement of affairs of a company was not filed, for establishing an offence under Section 454(5) of the Act and nothing more. This view of the single Judge of this Court was not accepted by the Full Bench in view of the reasoning given in paragraph 9 of the judgment, which reads as under: