DHARAM PAL GUPTA Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) THIS petition has been filed under Section 633(2) of the Companies Act, 1956 (here in after referred to as the 'Act',). The petitioners as will as the non -petitioner No. 2 were the Directors of Auto Electricals (India) Pvt. Ltd. a Company registered under the Ac' and non -petitioner No. 2 was it's Managing Director. The case of the petitioners is that the non -petitioner No. 2 did not call the Annual General Meeting of the Company and did not place the balance sheet and profits and loss accounts before the Annual General meeting as required under Section 210 of the Act. The petitioners apprehending that they would be prosecuted under Sections 159, 166, 210 and 220 of the Act, in respect of negligence, default, breach of duty, misfeasance or breach of trust, moved this petition on 23rd November, 1983 where in they have submitted that they have acted honestly and reasonably to comply with the formalities under Sections 159, 165, 210 and 220 of the Act and that they were not able to comply with the said formalities on account of the failure of non -petitioner No. 2 to comply with all the requirements of those Sections The petitioners have prayed that they may be relieved from being prosecuted under the aforesaid Sections

(2.) A notice was issued to the non -petitioners and in response to the same the replies have been filed by both the non -petitioners. In the reply filed on behalf of the Registrar of Companies, non -petitioner No. 1, an objection has been raised with regard to the maintainability of the petition on the ground that the petitioners are already being prosecuted and the cases are pending against them for trial before the Chief Judicial Magistrate (Economic Offences) Jaipur and that in view of the pending prosecution this petition cannot be maintained. In the said reply it has also been disputed that the petitioners have acted honestly and reasonably. In the reply that has been filed on behalf of non -petitioner No. 2 it has been stated that the said non -petitioner had submitted his resignation from the office of Managing Director on 20th October, 1982. In the said reply the said non -petitioner has also stated that he was responsible only for planning and execution of technical work of the company and it was not his duty to call the annual general meeting of the Company and that the said meeting could be called by any one of the petitioners.

(3.) IT may be mentioned that even though in the replies that have been filed on behalf of the non -petitioners the exact date on which the prosecution was instituted against the petitioners has not been mentioned but Shri Kuhad, the learned Counsel for non -petitioner No. 2, has stated at the bar that the said prosecution was instituted by filing a complaint in the Court of Chief Judicial Magistrate (Economic Offence) Jaipur, on 7th January, 1984 i.e., after the filing of this petition in this Court.