REGISTRAR OF COMPANIES Vs. S PROSHAD

JUDGEMENT

(1.) In all these matters, the two accused persons being the opposite parties herein, were discharged by the impugned orders dated March 28, 1979, passed by the learned Metropolitan Magistrate, 9th Court, Calcutta. The complaints in the respective cases filed by the petitioner were that as directors they had failed to take all reasonable steps to secure compliance by the company in respect of the accounts to be laid before the company in general meetings with the requirements of the Companies Act and, as such, had thereby become liable to be punished under the provision of Section 211(7) of the Companies Act.

(2.) Since I find that the averments in the petitions of complaint in these cases are not in compliance with Section 209(6)(d) of the said Act, no case for any interference with the impugned order arises. Section 209(6)(d) read with Section 211(7) of the said Act imposes liability on every director of the company " where the company has neither a managing agent, nor secretaries and treasurers, nor managing director, nor manager ". But in none of those petitions of complaint is there any averment to that effect as required in Section 209(6)(d), which is a necessary prerequisite for fixing the alleged liability on a director. There must be an averment to show that "a director" is liable, excluding the other persons mentioned in Section 209(6)(d) of the said Act.

(3.) It is true that the impuged orders have not considered this particular absence of specific averment as contemplated under Section 209(6)(d) of the said Act, but in view of lack of specific averment as indicated above, it is not necessary for me to consider whether the learned Magistrate was right in discharging the accused due to lack of the specific averment in the petitions of complaint that these accused persons were authorised by the board of directors of the company to discharge the particular obligation which they have failed to discharge and, therefore, are not officers in default as laid down in Section 5 of the Companies Act.