B N CHIKARMANE Vs. SWASHRAYA BENEFIT PRIVATE LIMITED

JUDGEMENT

(1.) By these Company Applications the Petitioner who is the Deputy Chief Officer Department of Non-Banking Companies of the Reserve Bank of India has take out Judges Summons for obtaining leave under sec. 446 of the Companies Act 1956 for launching prosecu- tions against respondents Nos. 1 to 3 in all these applications for the alleged violation of clause 4 of the Miscellaneous Non-Banking Compa- nies (Reserve Bank) Directions 1973 and thereby having committed offence under sec. 58-B (1) read with sec. 58-C(i) of the Reserve Bank of India Act 1934

(2.) A question arose whether such a permission is necessary in view of the decision of this Court (Coram: B. K. Mehta J.) in Company Application No. 207 of 1980 where in the context of criminal prosecution under the provident Fund Act read with the Provident Fund Scheme the erstwhile Directors and other Officers of the Manekchowk & Ahmedabad Mfg. Company (in liquidation) were prosecuted. In that context following the decision of the Supreme Court in Jaswantrai Manilal Akhaney v. The State of Bombay AIR 1956 SC 575 and Inderjit C. Parikh v. B. K. Bhatt and Anr. AIR 1974 of 1183 it was held that no such permission was necessary since admittedly the Company was not joined as a party accused.

(3.) So far as the present case in concerned the Company is sought to be prosecuted for the alleged violation of the Miscellaneous Non- Banking Companies (Reserve Bank) Directions 1973 under sec. 58-C (1). of the Reserve Bank of India Act 1934 Sec. 58-B provides for penalties. Sec. 58-B(5) inter alia provides that if any person receives any deposit in contravention of any direction given or order made under Chapter IIIB he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Sec. 58-C provides for a deeming fiction when offence is said to have been committed by a company and its directors. Sub-sec. (1) of see. 58-C reads as under: