In the High Court of Judicature at Madras Dated: 01.07.2008 Coram: The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice R.SUBBIAH Original Side Appeal No.260 of 2002 1. Farouk Irani 2. V.Balaraman ..Appellants ..vs.. 1. The Registrar of Companies, Shastri Bhavan, 2nd Floor, No.26, Haddows Road, Chennai-600 006. 2. The Regional Director, Department of Company Affairs, Southern Region, Shastri Bhavan, 5th Floor, No.26, Haddows Road, Chennai-600 006. ..Respondents Original Side Appeal filed against the order dated 05.12.2001 passed by a learned single Judge of this Court in C.P.No.265 of 2001. For Appellant : Mr.R.Senthil Kumar For Respondents : Mr.M.Jegadeesan, ACGSC., JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.,) Challenge in this appeal is to the order of dismissal of C.P.No.265 of 2001 by the learned single Judge, whereby the petitioners' request to exercise the discretion of the Court under Section 633(1) of the Companies Act, read with Rule 11(a) (23) of the Companies (Court) Rules, 1959, to relieve the https://hcservices.ecourts.gov.in/hcservices/ petitioners from criminal prosecution pursuant to the show cause notice issued by the 1st respondent in No.6423/CI/209A/628/2001 dated 27.07.2001, was denied. 2. The facts, which led the petitioners/appellants to file the said appeal were that the 1st petitioner is Managing Director of M/s.First Leasing Company of India Limited and the 2nd petitioner is formerly the Company Secretary of the said Company between 04.10.1994 and 15.11.2001. The books of accounts and registers of the said company were made under Section 209A of the Companies Act and the inspection report was submitted on 01.05.2000. Certain violations of mandatory provisions of the Companies Act and Rules were pointed out and that the returns were not in accordance with the requirements and hence, there was a violation of Section 161(2)(9) of the Companies Act. On receipt of the show cause notice, an explanation was offered by the petitioners/appellants inter alia stating that there was no violation, that the invocation of Section 628 of the Act was misconceived and hence, the action was not maintainable since the entire essential requirements were not satisfied with. Apart from that, it was also averred that the company has filed a revised return incorporating the details and particulars and also paid the additional fees thereon. Pending consideration of the said explanation, the show cause notice referred to above was served upon the petitioners. Apprehending the criminal action pursuant to the show cause notice, the company petition was brought before this Court. 3. On enquiry, the learned single Judge has taken a view that it was not fit a case, where the discretionary power vested upon the Court could be exercised in favour of the petitioners and accordingly, the company petition was dismissed. Hence, this appeal has arisen at the instance of the petitioners. 4. Advancing the arguments on behalf of the appellants, the learned counsel would submit that their company, which has been functioning for nearly about three decades, at no point of time, had been found with any fault. The returns for the years 1996- 97, 1997-98 and 1998-99 were submitted on 03.07.1997, 18.05.1998 and 21.05.1999 respectively. It is true that the inspection was made. Following the inspection report dated 01.05.2000, all the defects were noticed. Immediately, a letter was written to the Registrar of Companies on 09.08.2000 i.e. within a few months from the receipt of the inspection report, wherein all the necessary details and particulars were given. Following the same, on 13.06.2001 a revised return was made, whereby all the mistakes, which were pointed out by the authorities, were rectified. But when the show cause notice was issued on 27.07.2001, neither the letter addressed to the Registrar of https://hcservices.ecourts.gov.in/hcservices/ Companies dated 09.08.2000, nor the revised return dated 13.06.2001, was referred to, but it has proceeded that those violations were relating to mandatory provisions and why not the prosecution could be launched against the petitioners. Learned counsel would further submit that in the instant case, the Court has to necessarily exercise discretionary powers since they were all mere acts of inadvertence and they were not deliberate or dishonest or misconceived and if they were found to be either dishonest or deliberate or misconceived, the prosecution has got to be launched. In the instant case, when immediately after the inspection report was served, all those defects were noticed, and a communication was addressed, whereby the correct particulars were given and that would clearly indicate the bona fide of the petitioners. Apart from that, a revised return was also placed. Under such circumstances, merely because the mistakes are found or crept in in the returns, it cannot be said that it was a fit case for launching prosecution, but in the instant case, they are found to be bona fide mistakes and hence it is a fit case where the Court should exercise its discretionary powers in favour of the appellants and thus they should be relieved from launching the prosecution. 5. Contrary to the above contentions, the learned counsel appearing for the respondents would submit that in the instant case, 20 violations were noticed and many of them were the violations of mandatory provisions and thus, in a given case, once they violated the mandatory provisions, they cannot be taken or termed as mistakes crept in and in a case where the acts committed by the petitioners were deliberate or dishonest, it has got to be decided only on adducing evidence before the Court of law. But, in the instant case, it is quite clear that the acts of the petitioners are violative of the mandatory provisions. Thus, the learned single Judge was perfectly correct in refusing to exercise discretionary power vested upon the Court, and hence, the appeal has got to be dismissed. 6. The court has paid anxious consideration on the submissions made by the learned counsel on either side. 7. It is not in controversy that a show cause notice as referred to in the petition dated 27.07.2001 was served on the appellants. They immediately gave a reply whereby there was no violation of Section 628 of the Act and further invocation of the provisions was misconceived and hence, the action was not maintainable. But at this juncture, it is pertinent to point out that they were not inadvertently crept in. Further, it is true, that to the show cause notice they have given an explanation and following the explanation, show cause notice emanated. Now, the contention putforth by the learned counsel for the appellants is https://hcservices.ecourts.gov.in/hcservices/ that immediately after the inspection report, a communication was addressed on 09.08.2000 to the Registrar of Companies, furnishing correct figures. At this juncture, it is pertinent to point out that the inspection report was served upon the petitioners on 01.05.2000, but they have sent the communication on 09.08.2000. In the opinion of the Court, such a communication addressed to the Registrar of Companies itself will not be construed as a rectification of the mistakes. But the revised return was filed only on 13.06.2001 nearly after one year from the date of inspection report. Further, in the instant case, the returns were filed for the years 1997, 1998 and 1999 on 03.07.1997, 18.05.1998 and 21.05.1999 respectively and they were of the period of nearly three years. So far as the violations, as could be seen from the report, are concerned, there were nearly 20 violations and most of them were the violations of mandatory provisions and at no stretch of imagination, the violation of mandatory provisions could be termed as or taken as 'mistakes crept in' and it is needless to say that the powers vested upon this Court under Section 633 of the Companies Act to grant the relief is, firstly, discretionary. Secondly, the petitioners have to satisfy the following conditions stipulated under Section 633(1) of the Act; (1) the lapse or offence alleged must be one of the kinds mentioned in Section 633(1); (2) the applicant must be shown to have acted honestly and reasonably; and (3) the Court is in a position to conclude or render the finding with regard to all the circumstances of the case, that the Officer ought to be excused fairly. 8. In order to exercise the discretionary power under Section 633(2), all the conditions under section 633(1) of the Act must be satisfied. But in the instant case, as rightly pointed out by the learned counsel for the respondents, without adducing evidence, the Court cannot come to a conclusion that whether the petitioners have acted honestly and reasonably and further in the instant case, there is nothing available to conclude or record a finding as to the circumstances which attended in making such violations. In the instant case, as could be noticed, there were violations of mandatory provisions and they could not be termed as mistakes. Apart from this, when this is not a fit case, as rightly found by the learned single Judge, the Court could not exercise discretionary power in favour of the petitioners. In the said circumstances, this Court is of the view that the appeal does not carry merit and it is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the original side appeal is dismissed. There will be no order as to costs. The period during which the operation of show cause notice was stayed by this Court has got to be necessarily excluded. Gl Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Sub Asst Registrar, Original Side, High Court, Madras. + 1 cc to Mr. R. Senthilkumar, Advocate, SR No.34040 + 1 cc to Mr. M. Jegadeesan, Advocate, SR No.33732 Judgment in O.S.A.No.260 of 2002 MDR(CO) SR/28.7.2008 https://hcservices.ecourts.gov.in/hcservices/