Judgment

SARKAR, J. : The respondents were Directors of Hirjee Mills Ltd. They were prosecuted before the Chief Presidency Magistrate, Bombay, for two offences, under the Companies Act, 1913, as amended by Act XXII of 1936. The first offence was that they knowingly and wilfully authorised the failure to file the summary of share capital for the year 1953 and thereby became punishable under sub-sec (5) of S. 32 of the Act, for a default to carrying out the requirements of that section. The second offences was that they were knowingly and wilfully parties to the failure to lay before the Company in general meeting the balance sheet and profit and loss account as at March 31, 1953, and thereby became punishable under S. 133(3) of the Act for a default in complying with the requirements of S. 131. There was a separate trial in respect of each offence.

2. The learned Magistrate found that no general meeting of the company had been held in the year concerned. Following Emperor v. Pioneer Clay and Industrial Works Ltd., ILR (1948) Bom 86 he acquitted the respondents, being of the view that no offence under either section could be committed till the general meeting had been held. The learned Magistrate did not go into the merits of the cases on the facts. Appeals by the appellant to the High Court at Bombay from the orders of the learned Magistrate were summarily dismissed. It has preferred the present appeals from the decisions of the High Court at Bombay with special leave granted by this Court. The appeals have been heard together and are both disposed of by this judgment.

3. It appears that Respondent No. 7, N. K. Firodia, was discharged by the learned Magistrate because it was conceded at the trial that he was not a director of the Company at any material time. He has been made a respondent to the present appeals clearly through some misapprehension. The appellant, the State of Bombay, does not and cannot proceed against him. The name of respondent Firodia should therefore be struck out from the records of this appeal. Respondent No. 5, Fatch Chand Jhunjhunwala, died while this appeal was pending in this Court. The appeal is therefore concerned with the remaining five respondents only.

4. Sub-section (1) of S. 32 requires a company once at least in every year to make a list of its share holders as on the date of the first or only ordinary general meeting in the year. Sub-section (2) requires that the list shall contain a summary specifying various particulars mentioned in it. Sub-section (3) states that the list and summary shall be completed within twenty-one days after the day of the first or only ordinary general meeting in the year and the company shall forthwith file a copy with the registrar together with a certificate from a director or the manager or the secretary of the company that the list and summary state the facts as they stood on the day aforesaid Sub-section (5) contains the penal provision, that "If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding fifty rupees for every day during which the default continues, and every officer of the company who knowingly and wilfully authorises or permits the default shall be liable to the like penalty."

5. It is said on behalf of the respondents that there is no default in complying with the requirements of the section until a general meeting is held. That, it is said, follows from the language of the section, for it requires certain things as at the date of the meeting to be stated in the list and summary and also requires these to be filed within a certain time of the meeting. So, it is said that, the section requires certain things to be done only after the meeting has been held and no question of performing those things arises till the meeting has been held.

6. A contrary view has been taken in England on the corresponding provisions of the English Companies Acts of 1862 and 1908 : see Gibson v. Barton, (1875)