IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.MC.No. 3049 of 2008() ------------------------- ST.1213/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER: ------------ 1. AMBILI G.,W/O BRIJITH, AGED 31 YEARS, 1/4751, DHARMA, MAVILADATHU HOUSE, BILATHIKULAM ROAD, CALICUT DISTRICT. 2. G.ASWIN, S/O GOPINATH, AGED 27 YEARS, SAFRON, PULIKKAL LINE, NADAKKAVU P.O., CALICUT. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENTS: ------------- 1. ASST. REGISTRAR OF COMPANIES, KERALA COMPANY LAW BHAVN, BMC ROAD, THRIKKARA, KAKKANADU,ERNAKULAM. 2. M/S MAGNUS CARRIERS LIMITED, CHAKKANS M.P. ROAD, CALICUT -1. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2008, ALONG WITH CRMC NO. 3055 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. Nos. 3049 & 3055 of 2008 ------------------------------------------------- Dated this the 14th day of August, 2008 ORDER The petitioners in these two Crl.M.Cs. face allegations under the Companies Act as accused 4 and 7 in two separate prosecutions. The crux of the allegations against them is that they being the Directors of the company had culpably omitted to file annual returns. The 1st respondent is the complainant. Cognizance has been taken by the learned Magistrate. The petitioners had entered appearance before the learned Magistrate. The co-accused have not entered appearance so far. It is at this stage that the petitioners have come before this Court with these petitions praying that the powers under Sec.482 Cr.P.C. may be invoked to quash the proceedings against them. 2. What is the reason? The learned counsel for the Crl.M.C. Nos. 3049 & 3055 of 2008 -: 2 :- petitioners submits that though they have been shown as the Directors of the company as per the records of the company and they are shown to have signed in certain documents, as a matter of fact, they had not signed in any such documents. They had not acted as the Directors of the company. In fact, on the dates when they are alleged to have been appointed as the Directors, they had not attained the age of majority and consequently the appointment, if any, of the petitioners as Directors is void. The learned counsel further contends that, at any rate, the petitioners had never participated in any meeting of the Board of Directors and that they had never acted as the Directors and, in these circumstances, it has to be held that they are not the Directors of the company. Consequently, they are not liable to suffer the undeserved trauma of this prosecution. The petitioners wanted to raise these and other contentions. But the co-accused having not appeared so far, the proceedings are dragging on unnecessarily to the detriment, prejudice and inconvenience of the petitioners. In these circumstances, it is prayed that the proceedings against the petitioners may be quashed. 3. I have heard the learned counsel for the petitioners in detail. I have perused the records that are placed before me in Crl.M.C. Nos. 3049 & 3055 of 2008 -: 3 :- these Crl.M.Cs. At the moment and with the available inputs, it appears to be difficult for this Court to enter an authentic finding on the question of fact whether the petitioners had acted as the Directors of the company or not. That plea must certainly be raised before the learned Magistrate in the course of trial. At the moment and with the available inputs and while exercising the powers under Sec.482 Cr.P.C., this Court cannot resolve that complicated question of fact as to whether the petitioners were really the Directors and whether such appointment is vitiated by any reason. I am not, in these circumstances, satisfied that the powers under Sec.482 Cr.P.C. can, ought or need to be invoked. The petitioners must raise the contentions at the appropriate stage. I take note of the fact that on the date of the alleged offence, the petitioners had, without dispute, attained majority. 4. I find merit in the submission of the learned counsel for the petitioners that the petitioners have to be saved of the unnecessary and undeserved trauma of being obliged to appear before the court on all dates of posting. The learned Magistrate, whether the other accused have entered appearance or not, can record the plea of the petitioners straightaway and thereafter they can be permitted to be represented by their counsel, unless the learned Magistrate for any specific reason directs the Crl.M.C. Nos. 3049 & 3055 of 2008 -: 4 :- petitioners to appear before court. Until then, they can be represented by their counsel. Applications to this effect can be filed by the petitioners and the learned Magistrate must certainly consider such applications and pass appropriate orders. 5. With the above observations, these Crl.M.Cs. are dismissed. But I may hasten to observe that I have not intended to express any opinion on the acceptability of the contentions of the petitioners that they are not the Directors of the company and that they could not have been validly appointed as the Directors. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. Nos. 3049 & 3055 of 2008 -: 5 :-