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CALCUTTA HIGH COURT
AMARESH ROY, J.
Dulal Chandra Bhar and another, Accused - Petitioners
v.
The State of W.B. and another - Opposite Parties.
Criminal Revn. Nos. 1249-1262 and 1587 to 1602 of 1960
Decided on: 22-3-1961
INDIAN COMPANIES ACT, 1956 - SECTIONS 162(1), 168, 210(5), 220(3) - OFFENCES UNDER - INTERPRETATION - PROCEDURE FOR RECORDING EVIDENCE - IRREGULARITY - EFFECT - DEFAULT IN COMPLYING WITH PROVISIONS - LIABILITY OF DIRECTORS - SECTION 633 - RELIEF UNDER - SCOPE.
Fact of the Case:
The company Bhusan Chandra Bhar and Sons (Private) Limited and four Directors of that company were prosecuted for offences under Sections 162(1), 168, 210(5) and 220(3) of the Indian Companies Act, 1956 in respect of non-compliance of provisions of that Act for the years 1956, 1957, 1958 and 1959. The accused pleaded not guilty and the trial court found the company guilty and fined it Rs. 50/- in each case. The Directors accused Nos. 1 to 3 were found guilty but were given relief under Section 633 of the Indian Companies Act, 1956 and no fine was imposed on those three accused but the accused Nos. 4 and 5 were found guilty of each of the offences charged against them and each of them was fined Rs. 5/- in each case.
Finding of the Court:
The court held that the procedure adopted by the learned Presidency Magistrate in the matter of recording the deposition of witness has been illegal and in violation of the provisions of Code of Criminal Procedure and that has vitiated the entire proceeding and the order of conviction must be quashed. The court also held that the contention of the accused that by Section 161 and other sections following in Indian Companies Act, 1956 defaults in respect of offences under Sections 168, 210 (5) and 220 (3) cannot arise because the respective duties enjoined cannot be performed either by the company or by the Directors unless Annual General Meeting has been held, is not tenable.
Issues: 1. Whether the procedure adopted by the learned Presidency Magistrate in the matter of recording the deposition of witness was illegal and in violation of the provisions of Code of Criminal Procedure? 2. Whether the contention of the accused that by Section 161 and other sections following in Indian Companies Act, 1956 defaults in respect of offences under Sections 168, 210 (5) and 220 (3) cannot arise because the respective duties enjoined cannot be performed either by the company or by the Directors unless Annual General Meeting has been held, is tenable?
Ratio Decidendi: 1. The court held that the procedure adopted by the learned Presidency Magistrate in the matter of recording the deposition of witness was not illegal or a mere irregularity, and that even if an irregularity is contemplated by not making the witness repeat the same language as many times as were the number of cases, even then that irregularity cannot, by any contemplation, cause an actual or even possible failure of justice and on the authority of the Privy Council decision referred to above in Abdul Rahaman's case, 54 Ind App 96 : (AIR 1927 PC 44), that irregularity is cured by Sections 535 and 537 Cr. P. C. 2. The court held that the contention of the accused that by Section 161 and other sections following in Indian Companies Act, 1956 defaults in respect of offences under Sections 168, 210 (5) and 220 (3) cannot arise because the respective duties enjoined cannot be performed either by the company or by the Directors unless Annual General Meeting has been held, is not tenable.
Final Decision: The court discharged the Rules in Criminal Revision Cases Nos. 1249 to 1262 by affirming the convictions of the two petitioners in those cases and made absolute the Rules in Criminal Revision Cases Nos. 1587 to 1602 by enhancing the sentence of each of the accused persons.
In this case a company named Bhusan Chandra Bhar and Sons (Private) Limited and four Directors of that company (1) Raj Krishna Bhar (2) Gadadhar Bhar (3) Panchkari Bhar (4) Dulal Chandra Bhar and the Secretary of the Company (5) Sanatan Bhar were prosecuted for offences under Sections 162(1), 168, 210(5) and 220(3) of the Indian Companies Act, 1956 in respect of non-compliance of provisions of that Act for the years 1956, 1957, 1958 and 1959. In all 25 cases were tried in 14 groups. In each of the cases the accused persons pleaded not guilty and at the trial one witness was examined on behalf of the prosecution and one witness was examined on behalf of the defence. Upon that trial the company accused was found guilty and fined Rs. 50/- in each case. The Directors accused Nos. 1 to 3 were found guilty but were given relief under Section 633 of the Indian Companies Act, 1956 and no fine was imposed on those three accused but the accused Nos. 4 and 5 were found guilty of each of the offences charged against them and each of them was fined Rs. 5/- in each case. Although the final order was passed in each case separately, one judgment was pronounced by the learned Presidency Magistrate to govern all the cases. This was done as the learned Presidency Magistrate has mentioned in his Judgment :
"In view of the fact that although there is difference of years the parties, the evidence, the argument and the charges are practically the same."
The procedure adopted, however, has been the subject-matter of complaint in the Revision petition in this Court on the ground that the learned Presidency Magistrate recorded evidence only in one case which was adopted in all the other cases and he did not record evidence separately in each case.
2. Against the order of conviction and sentence Dulal Chandra Bhar and Sanatan Bhar who are accused Nos. 4 and 5 before the learned Presidency Magistrate moved this Court and upon those applications Criminal Revision Cases Nos. 1249 to 1262 of 1960 were issued. The company accused and the accused Nos. 1, 2 and 3 did not challenge the order of conviction passed against them.
3. The Assistant Registrar of Companies, West Bengal moved against the orders of the learned Presidency Magistrate in each of the cases praying for enhancement of sentences in each case and also for imposition of fines against those Directors who have been convicted out have been granted relief under Section 633 of the Indian Companies Act and on those applications of the Assistant Registrar of Companies, West Bengal the Rules in Criminal Revision Cases Nos. 1587 to 1602 of 1960 were issued.
4. The two groups of Rules arising out of the same judgment passed by the learned Presidency Magistrate were directed to be heard together and they were heard together. One feature in respect of the representation of the accused persons in this Court need mention. In Rules Nos. 1249 to 1262 which are Rules directed against the orders of conviction and sentence the two petitioners Dulal Chandra Bhar and Sanatan Bhar are represented by the learned Advocate Mr. Prasun Chandra Ghosh. But those two accused persons have entered appearance in the Rules for enhancement of their sentences which are Rules in Revision Cases Nos. 1587 to 1602 through the learned Advocate Amal Kumar Ghoshal. In these Revision Cases the company and the three Directors Raj Krishna Bhar, Gadadhar Bhar and Panchkari Bhar have appeared through the learned Advocate Mr. Provash Chandra Mukherjee. A short history of the company and circumstances that led to the defaults complained of by prosecution as also the contentions of each of the accused persons regarding the circumstances under which the defaults occurred and the responsibility for these defaults are necessary to be stated for appreciating the points argued in these cases. The company Bhusan Chandra and Sons (Private) Limited was incorporated on or about 11th April, 1951. The five accused persons were the Directors of the said comp
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