ATUL B MUNIM Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) THIS petition is filed under section 482 of the Cri. P. C. for quashing the complaint filed by the respondent No. 1 the Registrar of companies being C. C. No. 124/rc/93 in the Court of Additional Chief Metropolitan Magistrate, Esplanade, Bombay under the provisions of section 73 (2-B) and (3) of the Companies Act, 1956.

(2.) THE allegation in the complaint is that M/s. Mural India Limited, having its office at Dubash House, 15, J. N. Horodi Marg, Ballard Estate, Bombay 38, had issued prospectus dated 8-4-1994 for issued of its shares which were applied for subscription by the members of the public and though the applications were sent to the company along with the application money, the allotment letters were not issued nor application money was refunded to them within the prescribed period. The issue was opened on 5-5-1992 and was to be closed on 8-5-1992 but not later than 15-5-1992. It is further alleged that some of the subscribers had received allotment letters but did not receive the share certificates about which several complaints were received by the Registrar of companies and, therefore, the Registrar of companies issue show-cause notice dated 12-10-1993 to the company. Although in the complaint it is averred that the notice was not replied to by the company, the petition mentions that the notices were replied to on behalf of the company. Thereafter the present prosecution was lodged against not only the company but against the Managing Director. Company Secretary and other Directors of the Company. A copy of the complaint filed in the trial Court is annexed as Exhibit "d" to this petition.

(3.) THE present petitioner was arraigned as accused No. 7. The title of the complaint itself mentions the accused No. 7 to be an alternate Director to one Dr. F. Hartmann who is a foreigner. The petitioner was appointed as an alternative Director on 26-2-1992 and as per the petition he had already resigned on 20-8-1993. The petitioner challenges the process issued in the said complaint in this petition and seeks quashing of the said complaint on the ground that petitioner being an alternate Director was not an officer who is in default within the meaning of section 5 of the Companies Act and, therefore, no process could have been issued against the petitioner as he was not liable under section 73 (2-A) for the repayment of the moneys to the subscribers or to deposit the subscription amount in a Scheduled Bank.