KALPESH DAGLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner-original accused no. 6, Director of M/s. Reliable Finstock Services Ltd. to quash and set aside the impugned Complaint, being Criminal Case No. 610/1999 filed by respondent no. 2 herein-original complainant pending in the Court of learned Additional Chief Metropolitan Magistrate, Ahmedabad.

(2.) Respondent no. 2-original complainant-Assistant Registrar of Companies, Ahmedabad has instituted/filed the impugned Complaint, being Criminal Case No. 610/1999 in the Court of learned Additional Chief Metropolitan Magistrate, Ahmedabad against the petitioner and others for the offence punishable under Section 150(1) read with Section 150(2) of the Companies Act, 1956. In the said Complaint, it is alleged that original accused no. 1 is the Company and original accused nos. 2 to 8 were the Directors of original accused no. 1-Company. It is further alleged that inspection was carried out under Section 290-A of the Companies Act and the concerned Officer detected the default and contraventions, which are as under;

(3.) Shri S.P. Majmudar, learned advocate appearing on behalf of the petitioner-original accused no. 6 has vehemently submitted that as such the petitioner was only the Director of original accused no. 1-Company at the relevant time and there was already a Managing Director appointed by original accused no. 1-Company and, therefore considering Section 5 of the Companies Act, 1956, the petitioner cannot be said to be "Officer in default" and, therefore, it cannot be said that the petitioner has committed any offence as alleged. It is submitted by Shri Majmudar, learned advocate appearing on behalf of the petitioner-original accused no. 6 that in a case where the Company does not have any Officer specified in Clause (a) to (c) of Section 5 of the Companies Act, 1956 then and then only any other Director who may be specified by the Board and where no Director is so specified, all the Directors can be held liable for the offence of the default alleged to have been committed by the "Officer who is in default" of Company.