Ramesh Ranganathan, J.

The question, referred for our opinion, is whether the onus lies on the Official Liquidator to prove that the person, against whom prosecution is launched under Section 454(5A) of the Companies Act, 1956 (for short, the Act), had no reasonable excuse for not complying with the requirement of Section 454 of the Act, for him to be prosecuted and punished under Section 454(5) of the Act (or) whether it would suffice if the prosecution is able to show that there has been a default on the part of the accused, in complying with the requirement of Section 454, to attract the penal consequences under Section 454(5) of the Act, and it is then for the accused to show reasonable excuse, for such default, for him to be exonerated of the offence.

2. While the former view weighed with a Division Bench of this Court in Indla Satya Raju v. Sramika Agro Farm (P) Ltd. (In liquidation), (2002) 4 ALD 637, and a Full Bench of the Delhi High Court in Official Liquidator of Security and Finance P. Ltd. v. B.K. Bedi, (1974) 1 ILR(Del) 809, a Learned Single Judge of this Court (Justice T. Ch. Surya Rao) was of the considered view that, on a plain reading of Section 454(5) of the Act, reasonable excuse should be shown by the accused, and not the prosecution. By his order dated 25.01.2006, the Learned Judge directed that the matter be placed before the Chief Justice for appropriate orders, as this issue was required to be examined afresh by the appropriate Bench to be constituted for that purpose. On the directions of the then Chief Justice, C.A.No.814 of 2001 was listed before a Division Bench which, in its order dated 04.04.2006, was of the prima-facie opinion that the burden, to prove absence of reasonable excuse, was on the persons who were liable to produce the Statement of Affairs in terms of Section 454 of the Act; and the official liquidator could not be called upon to prove the negative. The Division Bench expressed its agreement, with the opinion of the Learned Single Judge that the declaration of law by the earlier Division Bench, in Indla Satya Raju, required reconsideration. As they were inclined to take a view different from that expressed by the earlier Division Bench in India Satya Raju, the matter was referred for the consideration of a Larger Bench and, accordingly, the question of law, noted hereinabove, has been referred to us for our opinion.

3. Before examining the rival submissions urged by Sri M.Anil Kumar, Learned Counsel appearing on behalf of the Official Liquidator, and Sri P.Vikram, Learned Counsel appearing for the respondent-accused, it is useful to take note of the opinion of the earlier Division Bench of this Court on this question. In Indla Satya Raju1, the Division bench held that if the person, against whom prosecution can be launched under Section 454(5-A), has reasonable excuse for not complying with the requirements of Section 454, such a person cannot be prosecuted and punished under Sub-section (5) of Section 454 of the Act; the fact, whether the person has reasonable excuse for committing default in the matter of complying with any of the requirements of Section 454 of the Act, is a jurisdictional fact, the existence of which is a must to exercise power under Sub-section (5-A); in the context of Section 454, particularly having regard to the provisions of sub-section (5), the burden, to prove that the accused has no reasonable excuse, is on the prosecution, namely, the Official Liquidator; a person cannot be prosecuted and convicted under sub-section (5) merely for the reason that he committed default in complying with any of the 'requirements of Section 454; and, in addition to establishing the default, the prosecution is also required to establish that the person has committed default, in complying with any of the requirements of Section 454, without reasonable excuse.

4. Sri M. Anil Kumar, Learned Counsel appearing on behalf of the Official Liquidator, would submit that the compla