IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 Crl.Rev.Pet.No. 2312 of 2009() --------------------------------------- CRA.668/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM STC.80/1997 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONERS: ------------------------------ 1. AMISON FOODS LIMITED, AMISON HOUSE, RAMESWARAM LANE, COCHIN -682 011., 2. A.H. MOHAMMED BABU, 12/1367 A, PANAYAPPILLY, KOCHI-680 002. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: ---------------------- 1. THE REGISTRAR OF COMPANIES KERALA, M.G. ROAD, ERNAKULAM, COCHIN -11. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.KRISHNAMOORTHY, CGC FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J ------------------------------------- Crl.R.P.NO. 2312 OF 2009 -------------------------------------- Dated this the 12th day of March, 2010. O R D E R The Registrar of Companies prosecuted the revision petitioners alleging the offence u/S.97(3) of the Companies Act. The revision petitioners are the company, its Chairman-cum- Managing Director and the Secretary respectively. They pleaded not guilty. Hence they were sent for trial. After trial, they were found guilty for offence u/S.97(3) of the Companies Act for failing to file return in Form No.5 . Consequently they were convicted and sentenced to a fine of Rs.10,000/- each. In default of payment of fine, the revision petitioners 2 and 3 were sentenced to Simple Imprisonment for one month. They were further directed to file Form No.5 within 2 months from the date of the judgment of the trial court. 2. Feeling aggrieved by the above conviction and sentence, Crl.Appeal No.668 of 2004 was filed before the District and Sessions Judge, Ernakulam, but they were unsuccessful. 3. Assailing the legality, correctness and propriety of the Crl.R.P.NO. 2312 OF 2009 2 above conviction and sentence as confirmed in appeal, this revision petition was filed. Ext.P1 and P2 would show that the first revision petitioner is a registered company under Indian Companies Act and that the 2nd and 3rd revision petitioners are the then Chairman-cum- Managing Director and the Secretary. Originally, the company was registered as a Private Limited Company. Subsequently it was re- registered as a Public Ltd., Company. Ext.P3 fresh certificate of incorporation was issued. Original share capital was Rs.5,00,000/-. Step by step it was increased to Rs.32 Crores as evidenced by Ext.P8. Though the resolution was taken to increase the share capital from 7 Crores to 32 Crores, Form No.5 was not submitted. It is alleging failure to submit Form No. 5, the prosecution was launched. The defence taken is that subsequently another resolution was taken to reduce the share capital. That is not at all a good defence in a prosecution u/S.97(3). Irrespective of the subsequent resolution to reduce the capital, respondents are bound to submit Form No.5. That is the mandate of the statute, failing which revision petitioners are liable to be prosecuted. There is no case that Form No.5 was submitted at any time subsequently. Concurrent finding of the courts below. is to that effect. I fail to find anything to interfere Crl.R.P.NO. 2312 OF 2009 3 with that finding. It is in accordance with the statute. The sentence awarded is not at all harsh and requires no interference. 4. The learned counsel for the revision petitioner vehementally argued that direction to the revision petitioner to file return in Form No.5 u/S.614(A) is discretionary and the courts below went wrong in directing the revision petitioner to file the return with plea that the share capital was subsequently reduced and inspite of that the company could not survive and winding up proceedings are initiated. Regarding the winding up proceedings, no evidence was let in before the trial court. In the above circumstance, I find that the revision petitioners had failed to adduce any evidence before the trial court for not directing the revision petitioners to file Form No.5 which is mandatory. I find that the courts below had correctly exercised the discretion as against the revision petitioners and in favour of the first respondent. There is no illegality, error or impropriety to be rectified in exercise of the revisional powers. The revision petition is devoid of merit. Accordingly it is dismissed. P.S.GOPINATHAN,JUDGE. pm