IN THE COURT OF SH. NARINDER KUMAR ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI Criminal Revision No. 143/2013 In the matter of: Registrar of Companies, Delhi & Haryana, th IFCI Tower, 4 Floor, 61 Nehru Place, New Delhi. Appellant Versus 1. [ENTITY] 530/1, 3 & 4, Village Bijwasan, New Delhi - 110061. 2. Sh. [ENTITY], Managing Director, nd E13, 2 Floor, Greater Kailash Enclave, PartI, Delhi 110048. Respondents Date of Institution: 29.07.2013 Date of Judgment: 04.04.2014 J U D G M E N T
By way of present revision petition, Registrar of Companies has challenged order dated 25.09.2012 passed by learned ACMM whereby a criminal complaint filed by the petitioner alleging commission for an offence under [SECTION] of the [ACT] for contravention of [SECTION] read with [SECTION] of the [ACT] has been dismissed while accepting the contention raised by learned counsel for the respondents that the complaint was barred by limitation.
Petitionercomplainant could file revision petition against the impugned order within 90 days. Impugned order is dated 25.09.2012. Revision petition came to be filed o n 08.03.2013. Therefore, the petitioner has filed an application under [SECTION] of [ACT] for condonation of delay.
The ground put forth by the petitioner for condonation of delay is that matter was taken up with the Ministry of Corporate Affairs as well as Regional Director (Northern Region), Noida and that vetted and signed copies of revision petition having been received back by counsel for petitioner on 08.03.2013, the revision petition came to be filed on the same date. It is alleged that in the given circumstances, delay in filing revision petition being not intentional same deserves to be condoned and further that otherwise, petitioner shall suffer irreparable loss/injury without any restitution thereof.
The application has been opposed by filing reply thereto. In support of the application, petitioner has led evidence by examining CW1 Sh. [ENTITY], Assistant Registrar. CW1 has proved documents Ex CW1/A and Ex CW1/J and narrated the steps taken for filing of revision petition on receipt of the copy of impugned order upto receipt of draft revision petition, duly vetted and signed, for being sent back to the counsel for petitioner.
Learned counsel for petitionerapplicant submits that this is a fit case for condonation of delay for filing of the revision petition for the reasons given in the application as the oral and documentary evidence establishes that there was sufficient cause with the petitioner for nonfiling of the petition within the period of limitation of 90 days. In support of his contention, learned counsel has referred to the statement of CW1 Sh. [ENTITY], Assistant Registrar from the office of Registrar of Companiespetitioner and to the documents ExCW1/A to [ENTITY] On the other hand, learned counsel for respondents submit that petitioners have failed to prove that there was any sufficient cause in nonfiling of the petitioner within the period of limitation and as such the application for condonation of delay deserves to be dismissed. Further submitted that simply because the petitioner is Registrar of Companies, it is no ground for any leniency in condonation of delay in filing of revision petition. In this regard reference has been made to decision in [PRECEDENT], P. [ENTITY] Ramachandran v. State of Kerela and Anr. AIR 1998 SC 2276 and [PRECEDENT] and [PRECEDENT] and [PRECEDENT].
In the case of [PRECEDENT]'s case (supra) Hon'ble Supreme Court observed as under: "It is axiomatic the decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping in on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible
Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
Therein Hon'ble Apex Court held that the delay of 109 days in this case had been explained and that it was a fit case for condonation of delay.
In the case of P. [ENTITY] Ramachandran's case (supra), there was a delay of 565 days in filing the appeal and Hon'ble Apex Court set aside the order condoning the delay while observing as under: "Law of Limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious.
Set aside the order condoning the delay."
In the case of [PRECEDENT]'s case (supra), Hon'ble High Court observed as under: "It is true that UOI unlike a normal litigant may not be called upon to explain each day's delay by giving a reasonable or plausible Explanation but the entire delay has to be explained at least in a composite manner so as to enable the court to exercise the discretion in favor of the appellant, if the application satisfies the ingredients enunciated by different judicial pronouncements."
Herein, as noticed above, the impugned order is dt.25.09.2012, vide which the complaint filed by the petitioner - complainant has been dismissed while observing that there was no merit in the application filed by the complainant for condonation of delay in filing the complaint against respondents. Petitioner could file revision petition within period of 90 days. It came to be filed on 08.03.2013.
While appearing in court as CW1 Sh. [ENTITY], Assistant Registrar from the office of Registrar of Companies has proved documents Ex.CW1/A to Ex.CW1/K in support of the application for condonation of delay.
Record reveals that on receipt of copy of impugned order the office of the petitioner - applicant sent report to the Regional Director (North Region), Noida, vide letter dt.15.10.2012. CW1 admitted in his cross examination that Company Prosecutor applied for certified copy of impugned order, on 16.10.2012. Admittedly, that copy has not been placed on record. But its non production does not adversely affect the case, the reason being that office of the petitioner - applicant deemed it appropriate to bring the matter to the notice of the Regional Director while expressing its opinion that the impugned order should be challenged, for the reasons given therein, and while so observing requested for necessary directions as it was going to hamper cases even in future.
Ex.CW1/B is the correspondence from the Legal Section of Ministry of Company Affairs with the petitioner - applicant. Ex.CW1/C is letter dt. 07.11.2012 from Ministry of Corporate Affairs with the Secretary, Ministry of Corporate Affairs. The Director agreed with the views of the Registrar of companies that it was a fit case to challenge the impugned order dt. 25.09.2011.
Ex.CW1/D is letter dt.03.12.2012 from underSecretary to the Govt. of India addressed to the Regional Director, Noida, requisitioning four documents mentioned therein, for further action. Ex.CW1/E is letter dt.11.12.2012 from the Director, Ministry of Corporate Affairs to the Secretary of the same Ministry with request for examination of the matter in the Ministry on the point of sanction for filing prosecution. The Secretary of the Ministry of Corporate Affairs was again requested vide letter dt.24.12.2012 (Ex.CW1/F) for necessary directions on the basis of information sent therewith. Ex.CW1/F is letter dt.05.12.2012 from the Registrar of Companies to the Secretary, Ministry of Corporate Affairs again requesting for necessary directions. The correspondence reveals bonafides on the part of petitioner in taking up matter with the concerned Ministries.
Joint Director (Legal), Ministry of Corporate Affairs replied letter dt. 15.10.2012. Vide letter Ex.CW1/G dt.10.01.2013 Ministry was of the opinion that revision petition should be filed. Ex.CW1/H is the opinion annexed to this reply. It is thereafter that vide letter Ex.CW1/J dt.07.02.2013 CW1 was asked to contact government counsel. Ex.CW1/K is letter dt.05.02.2013 vide which CW1 requested the Legal Advisor, Ministry of Law and Justice to earmark the matters to Standing Govt. Counsel.
It is in the statement of CW1 that on 11.02.2013 their office received a letter Ex.CW1/J regarding appointment of Sh. [ENTITY], Advocate whereupon on 18.02.2013 conference was held with the Advocate and draft revision petitions were received from the Government Counsel on 28.02.2013. Then copies of revision petitions were vetted on 08.03.2013 and signed copies were sent to the Government Counsel.
In its cross examination, CW1 explained that he had signed the pleadings alongwith [ENTITY] on05.03.2013 but the same was submitted to Advocate on 08.03.2013.
Learned counsel for respondent no.2 submitted that the office of the petitioner - applicant took time even in sending copies of the documents sought for vide letter dt.31.10.2012 (Ex.CW1/B) and this shows slackness on the part of the officers of the petitioner and the slow pace at which action was taken. The contention is that in view of the unexplained delay even in submission of the copies of these documents, it can safely be said that matter was not followed up with seriousness and as such, the application deserves to be dismissed.
It is true that despatch of copies of the documents sought by the Ministry of Company Affairs vide letter Ex.CW1/B took sufficient time. But Sh. [ENTITY], Assistant Registrar, present in court submits that it took time in collecting these documents from different sections of their office. No doubt, these documents could be sent even earlier, but the same does not adversely affect the case of the petitioner on the point of condonation of delay. When matter had already been referred to the Regional Director and the Ministry for proper guidance & steps.
Having regard to all the facts and circumstances, this court finds that delay in filing of revision petition took place on account of correspondence between officers of the petitioner - applicant and the Ministry of Corporate Affairs, because of lack of timely and proper guidance/instructions, informing opinion whether to challenge or not to challenge the impugned order and in its communication to the petitioner. So, there was sufficient cause in not filing of revision petition within the prescribed period of limitation.
In [PRECEDENT], Hon'ble Apex Court observed as under: "The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code."
Having regard to all this, Court deems it a fit case for condonation of delay in filing of revision petition. At the same time, court deems it appropriate to impose cost of Rs.500/ on the petitioner, so that in future all the concerned are quick in taking steps in such a situation.
Application for condonation of delay is disposed of accordingly. On merits So far as impugned order is concerned, Learned counsel for petitioner submits that while determining the application for condonation of delay in filing of the criminal complaint, learned Trial Court erred, as the complainant is required by law to refer the matter to the Central Government and in following the procedure prescribed under [SECTION] of [ACT], the complainant complied with legal requirement, and as such complainant could not be dismissed at the threshold. Learned counsel refers to decision in The [PRECEDENT] decided by Hon'ble High Court of Karnataka on 12.04.2006.
On the other hand, learned counsel for respondent referred to decisions in [ENTITY] v. Registrar of Companies (2012) 108 CLA 21 (Delhi), wherein it has been observed that no prior approval of Central Government is required under [SECTION] of the [ACT]. The contention is that herein also no such approval was required and as such learned Trial Court has rightly held the complaint to be barred by limitation.
In [ENTITY]'s case (supra) referred to by learned counsel for respondent, our own Hon'ble High Court, while dealing with point of condonation of delay in filing of the complaint by the Registrar of Companies, observed in the manner as: "9. Coming to the contention of the petitioner the cognizance by the Trial Court was barred by the limitation, the Trial Court record must be perused. The show cause notice to the petitioner was issued on 26.07.2005, whereas the congnizance of the offence by the learned Trial Court was taken on 11.09.2007. the contention of the counsel for the respondent that the complaint was filed within the period of limitation as the limitation period commenced from the date the Central Government gave its approval for prosecution, cannot be accepted as there is no embargo under [SECTION] of the Act for the respondent to seek approval from the Central Government before initiating the prosecution against the petitioner. The period of limitation for taking cognizance of the offences commences when the knowledge of the commission of offence is gained by the prosecution agency. Furthermore, there was no application on record advanced by respondent for the condonation of delay in the Trial Court."
In the case of The Registrar of Companies in Karnataka's case (supra) on a perusal of all these decisions referred to therein, culled out of following principle of law for computing the period of limitation: "In a case registered on the complaint lodged by the Registrar of Companies in respect of an offence against the [ACT], one has to consider the date on which such offence came to his knowledge. In one case, it may be that the Registrar may have come to know about the offence on the date when the Inspecting Officer detects the contravention of the Act. In another case, he may not be aware of offence until a report is made by the Inspecting Officer to him.
Determination of this date of knowledge of the Registrar depends on facts of each case. In cases where the inspection of books of account and other books of the Company is done under [SECTION] of the [ACT], a report of the inspection will have to be made to the Central Government under [SECTION], of the [ACT] and the Registrar of Companies many come to know about the commission of such offence against the [ACT] only when he receives a communication from the concerned officer of the Department of Company Affairs. In such cases, the date on which he receives communication in this regard will have to be taken as the starting point of limitation under [SECTION] of the [ACT].
Therein inspection was done by the Department of Company affairs and there was nothing to show that at that time, the Registrar of Companies had been informed of the inspection. The result of the inspection came to the knowledge of the Registrar only when he received the report on 14.07.1993. Accordingly, this was taken as the starting point of limitation. "
In [ENTITY]'s case (Supra), no application was filed for condonation of delay. Herein the complainant filed application before the Trial Court for condonation of delay and even its notice was issued to the opposite party - proposed accused.
Therein, show cause notice was issued to the petitioner for 26.07.05 whereas cognizance of the offence was taken by the Trial Court on 11.09.07. Hon'ble Judge did not accept the contention raised by learned counsel for Registrar of Companies that the limitation period commenced from the date Central Government gave its approval. It was observed that there is no embargo U/[SECTION] for the respondent to seek approval from the Central Government before initiating proceedings and further that period of limitation for taking cognizance of the offence commences when knowledge of commission of offence is gained by the prosecuting agency.
Herein, as per facts given in the complaint filed before the Trial Court the company - M/s. Reebok India filed its balance sheet as on 31.12.08 with the office of Registrar of Companies on 29.07.09. The Registrar of Companies asked for specific information/explanation/record in respect of balance sheet and other documents by passing order U/[SECTION]. Then notice came to be issued to the company under [SECTION].
On examination of reply of the company it was not found satisfactory. After examination, office of Registrar of Companies prepared detailed report and presented the same to the Secretary, Ministry of Corporate Affairs. Thereupon, the Regional Director directed the complainant to file prosecution after issuing show cause notice to the persons liable for the default. Accordingly, opportunity of being heard, was given to respondent company and its Managing Director vide a notice. Company submitted its reply to show cause notice dated 18.04.2011. Then the complaint came to be filed on 21.05.2011.
It is well settled that question of limitation is a mixed question of law and facts and complainant cannot be thrown out on the ground of limitation, at the preliminary stage, where this issue needs to be decided by the Trial Court after evidence of the parties is complete. In this regard, reference may be made to decision in Bhupinder Singh V. Registrar of Companies, 142 (2007) DLT
277. In [ENTITY]'s case(supra), accused had been summoned in the complaint. Therein, it was disputed that show cause notice was served upon opposite party. Herein, facts were required to be proved by way of documentary evidence.
One of the points in that petition U/[SECTION] [ACT] was that prima facie it appeared that statutory orders U/[SECTION] of [ACT] was not delivered to the petitioner therein and as such, Hon'ble Judge observed that complaint was not maintainable.
Herein, no summoning order has yet been passed and the opposite party was issued notice only that of the application for condonation of delay. In other words, question of service of order U/[SECTION] of the Act on the opposite party had not yet arisen before Learned Addl. Chief Metropolitan Magistrate. Therefore, the decision in [ENTITY]'s case(supra) does not come to the help of the respondents for the present.
Having regard to the material placed on record by the complainant before the Trial Court as well the averments put forth in the complaint, this court finds that Learned Addl. Chief Metropolitan Magistrate fell in error in disposing the application and deciding mixed question of law and facts at the very preliminary stage.
As a result of the above findings, revision petition is allowed and impugned order dt.25.09.2012 is set aside.
Complainant to appear before the Trial Court on 19.04.2014. Learned ACMM to proceed in accordance with law.
Trial Court Record be returned. File of revision petition be consigned to Record Room.
Announced in Open Court on 04.04.2014 ([ENTITY] ) Additional Sessions Judge(Central) Delhi.