OFFICIAL LIQUIDATOR Vs. N.K. ACHUTHAN

JUDGEMENT

(1.) This criminal complaint has been filed by the Official Liquidator alleging that accused Nos. 1 to 4 are the directors of the company in liquidation. It is stated that the company was ordered to be wound up by order passed by this Court on 4.1.2010 and that the Official Liquidator was appointed as the Liquidator of the company. This orders were passed in CP. 16/09. It is stated that accused Nos. 1 to 4. being directors of the company on the relevant date, were issued Ext. A2 notice, calling upon them to file statement of affairs as required under Section 454 of the Companies Act. The accused did not file the statement of affairs. However, the other three directors of the Company filed the statement of affairs. On the failure of accused Nos. 1 to 4 to comply with the requirements of Section 454, this criminal complaint has been failed by the Official Liquidator. Summons was issued. The accused entered appearance and were enlarged on bail. Their plea of not guilty was recorded. Thereafter, CW1 was examined in support of the prosecution. Exts.A1 to A4 were marked on behalf of the prosecution and Exts.D1 to D9 were marked on behalf of the accused.

(2.) According to the complainant, the accused were the directors of the company as on 4.1.2010, the date of winding up. It being the relevant dale as contemplated in Section 454(2). this fact is sought to be proved by Ext. A1, the annual return of the company for the year 2006-07. It is also stated that being directors of the company on the relevant date, the accused had statutory liability under Section 454 to file statement of affairs. The Liquidator also states that the documents of the company were initially available with the company and were thereafter available with the Liquidator. Therefore, the accused had opportunity to peruse those documents and file the statement of affairs. It is stated that the accused failed to file the statement of affairs without any reasonable cause and therefore, have committed offence punishable under Section 454(5) of the Companies Act.

(3.) However, the case of accused Nos. 1 to 4 is that though they were initially directors of the company in liquidation, they retired from the Board of Directors at the end of 2006-07. In support of this contention, they relied on the annual report for the year 2007-08, copies of which are marked as Ext.D6. It is also their case that in reply to Ext. A3 show cause notice, they stated that they were not directors of the company as on the relevant date.