The essential ingredients for charging a person under Section 447 or 448 of the Companies Act must be present, and allowing a proceeding to continue without these ingredients would be an abuse of process of court.

JUDGMENT

Ajoy Kumar Mukherjee, J. - The present revisional application has been directed to quash the Complaint Case No. 14 of 2018 filed before 2nd Special Court, Kolkata. In the impugned proceeding, learned 2nd Special Court, Kolkata after perusal of application filed by complainant who is a public servant and also on perusal of documents on record issued summons upon the petitioners/accused persons vide order dated 14.12.2018.

2. The facts in relation to the criminal complaint under Sections 149/447/448 of the Companies Act, 2013 as set out in the revisional application by the petitioners are that the petitioner no.1/Company held a meeting of its Board of Directors on 9th December, 2014 and it was held, inter alia, the appointment of Mr. Ajaybir Singh Bakshi (Mr. Bakshi) as an 'Additional Director'. Pursuant to such meeting, Mr. Bakshi was appointed as Additional Director of the petitioner No.1 /Company. The petitioner no.1/Company filed Form DIR-12 with the respondent/ Opposite Party recording the appointment of Mr. Bakshi as Additional Director. Furthermore a copy of the letter dated 9th December, 2014 was issued to Mr. Bakshi appointing him as Additional Director which was filed as an attachment to the aforesaid Form DIR-12. Sometimes around February 2016 pursuant to its power under Section 206(5) of the Companies Act, the respondent/Opposite Party conducted an inspection of the petitioner no.1/Company's record and during such inspection, the respondent/opposite Party noted that the Minutes of the meeting of the Board of Directors of the petitioner no.1/Company held on 9th December, 2014, the following sentence was included under Item No.05 :

'Item No.05.....

Further, the Board took a note of the declaration of independence provided by Mr. Bakshi as per provisions of section 149(6) of the Act, for his appointment as an Independent Director on the Board. ....'

3. It is further alleged that pursuant to the Board Minutes, the petitioner no.1/Company had appointed Mr. Bakshi as an Independent Director and made an incorrect declaration in the aforesaid Form DIR-12 that Mr. Bakshi was appointed as Additional Director. Based on this, the opposite party issued show cause notice on 30th August, 2018 to the present petitioners. Pursuant to the said letter dated 20th September, 2018, the petitioner nos. 1 and 2 explained to the opposite party that -

(a) the one sentence in the Board Minutes was an inadvertent typographical error.

(b) Mr. Bakshi was in fact appointed as an 'additional director' and not as an 'independent director'.

(c) The Board Minutes in at least four places record unequivocally that Mr. Bakshi was appointed as an 'additional director', detailed as under:

(i) At the top of the Board Minutes recording the attendance of the members it is noted that:

'Present .......

Mr. Ajaybir Singh Bakshi Director (Appointed as an Additional Director during the meeting)'

(ii) The heading to the relevant Item No.5 for discussion, records as under:

'ITEM NO. 05 - APPOINTMENT OF MR. AJAYBIR SINGH BAKSHI AS AN ADDITIONAL DIRECTOR ON THE BOARD'

(iii) The paragraph immediately preceding the incorrect and inadvertent sentence records as under:

'It was proposed to appoint Mr. Ajaybir Singh Bakshi as an Additional Director of the Company in terms of the provisions of Section 161 of the Companies Act, 2013 ('the Act'). The Board was informed that Mr. Bakshi has given consent to act as a Director of the Company with the provisions of Section 152(5) of the Act and applicable Rules.'

(iv) The actual resolution records as under:

'RESOLVED THAT, in accordance with the provisions of Section 161 of the Companies Act, 2013 ('the Act') read with applicable rules under the Act, and the articles of association of the Company, Mr. Ajaybir Singh Bakshi be and is hereby appointed as an Additional Director of the Company with immediate effect to hold office upto the date of the next annual general meeting of the Company.'

(d) Form DIR-12 is consistent with the actual reso