Directors of a company can be held liable for default in filing the balance sheet under section 220 (3) of the Companies Act, even if they are not Managing Directors or whole time Directors, in the absence of any evidence to show that the company had filed a return specifying any other officer.

D.P. Sengupta, J.

This revisional application is directed against an order dated 4.12.92 passed by the ld. Additional Sessions Judge, 14th Court, Alipore thereby dismissing the appeal and confirming the order of conviction and sentence passed by the ld. Chief Judicial Magistrate, Alipore in Case No. 292/ 89 convicting the petitioners under section 220 (3) of the Companies Act, 1956 and sentencing each of them to pay a fine of Rs. 2,600/-.

2. The prosecution case is that the accused petitioner No.1 company and its three directors failed to file the balance sheet of the company for the year ended on 31.12.87, which ought to have been filed before the Registrar of Companies on or before 29.7.88. As the accused company and its directors failed and neglected to file the balance sheet in question the complaint was lodged in the court of ld. Magistrate. The company and its directors were under statutory obligations to file the balance sheet and profit & loss account for the year which ended on 31.12.87 within 30 days of Annual General Meeting. It was further alleged that despite the notice issued by the complainant the said documents were not filed and as such they committed an offence punishable under section 220 (3) of the Companies Act.

3. Mr. Amit Bhattacharjee, the ld. Advocate appearing for the petitioners submits that as per provisions of sub-section (3) of section 220 of the Companies Act the company and other officer of the company who is in default shall be liable to punishment and as per section 5 of the said Act the expression "officer who is in default" means the Managing Director or Managing Directors, the whole time Director or Directors, the Manager, the Secretary and any person in accordance with whose direction or instruction the Board of Directors of the Company is accustomed to act. Mr. Bhattacharjee submits that the petitioner Nos. 2 and 3 are neither the Managing Directors nor a whole time Director nor Manager nor Secretary. In order to prosecute the petitioner, it was necessary for the complainant to mention in the complaint whether the petitioner was a Managing Director or whole time Director as it is only those two types of Directors who could be termed as "officer in default". A person who is simply a Director cannot be prosecuted. I am unable to accept such submission of Mr. Bhattacharjee, because as per amended provisions of section 5 of the Act it appears that as per clause (g) where a company does not have any of the officers specified in clauses (a) to (c), any Director or Directors who may be specified by the Board in this behalf or where no Director is so specified, all the Directors. There is absolutely no evidence from the defence to show that the company had filed any return to the above effect. That being so all the Directors of the company have become responsible for the default made by the company and being the officer in default are liable to punishment under section 220(3) of the Companies Act for non-compliance with the provisions of the said Act.

4. Mr. Bhattacharjee further submits that the prosecution failed to adduce any evidence to the effect that the officers in default have wilfully committed the offence or abetted the commission of offence. But I am unable to accept such submission of Mr. Bhattacharjee. It appears from the evidence of PW 1 along with Ext. 5 that showcause notices were issued against the company and its Directors by registered post with AD. But inspite of such notice the petitioners failed to comply with the same. So it is clear that the present petitioners have knowingly and wilfully made the default in not complying with the provisions of Companies Act.

5. Admittedly the petitioner No.1 is the company registered under the Companies Act, 1956 and the petitioner Nos. 2 and 3 are the Directors of the said company. No document was filed by the defence to show that there had been any change in the Board of Directors. There is no dispute that the balance sheet and the