The failure to file a Statement of Affairs under the Companies Act constitutes a continuing offence, necessitating the prosecution to prove wilful default without reasonable excuse, with the burden of proof not shifting to the accused unless initial facts are established.

Judgment :

Sharmila U. Deshmukh, J.

1. The Accused are charged with offence punishable under Section 454(5) of Companies Act, 1956 [for short “Companies Act”] with imprisonment for term which may extend to two years, or with fine, which may extend to one thousand rupees for every day during which the default continues, or with both. By order of 8^th August 2013, process was issued against the Accused.

2. Section 454 of the Companies Act provides for the statement of affairs to be made to the Official Liquidator and Sub-Section (5) of Section 454 reads as under:

“If any person, without reasonable excuse, makes default in complying with any requirements of section, he shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs.1,000/- for every day during which the default continues or with both”

3. The complaint has been filed by the Official Liquidator of M/s. Geeta Marine Services Pvt. Limited. against the Accused. It is stated in the complaint that the Company was ordered to be wound up by order of 19th March 2009 passed by this Court and the Official Liquidator was appointed as Liquidator. The Accused Nos.1 to 4 are the Directors of the Company at the date of winding up order and as such under a statutory obligation under Section 454(1) and (3) of Companies Act to make out and submit to the official liquidator a statement as to the affairs of the Company (in liqn) in the prescribed form duly verified by an affidavit and containing the particulars specified in Sub-Section (1) of Section 454 of the Companies Act, within 21 days from the relevant date or within the time extended by the Court or by the Official Liquidator.

4. The complaint states that notices calling for the meeting and to file the statement of affairs under Section 454 of the Companies Act were issued to the Ex-Directors on 18^th June 2009 and 21^st July 2009. By order of 15^th July 2010, this Court directed the secured creditor and Ex-Directors to furnish the required information in respect of the assets and affairs of company in liquidation. By order of 12th March 2012, this Court had directed the Ex-Directors to file the statement of affairs of the Company and to hand over the books of accounts and records of the company within one week from the date of order to enable the Official Liquidator to proceed further in the winding up proceedings and to inform about the whereabouts of three barges, failing which action be taken under Section 454(5A) of the Companies Act.

5. On 20th March 2012, the Official Liquidator called upon the accused to file the statement of affairs and to inform the whereabouts of three barges taken on hire by the Company from the Petitioning Creditor. The complaint states that by their covering letters dated 22^nd March 2012 and 5^th April 2012, the Accused submitted copies of balance sheet for the period 2001–2009, vouchers, bank statements of the Company, Central Excise Stock Register, Correspondence and delivery challan.

6. The complaint states that the original documents, the statement of affairs and the required affidavit giving details of whereabouts of three barges have not been filed by the Accused and they have not handed over the books of accounts or records of the company. The copies of documents/records provided do not constitute books of accounts.

7. The complaint in paragraph 8 states that the ex-directors of the company (in