The court concluded that the complaint against the Company Secretary for false declaration lacked sufficient evidence for fraud and the trial court's cognizance was invalid due to lack of judicial examination.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred praying for quashing of complaint and proceeding being complaint no. 35/2019 pending before the Learned, 2nd Special Court, Calcutta at West Bengal under Section 448 of the COMPANIES ACT , 2013 for alleged violation of Section 233 of the COMPANIES ACT , 2013.

FACTS:-

2. The petitioner’s case is that he is the Company Secretary of Jayshree Chemicals Limited, a company incorporated under the provisions of the COMPANIES ACT , 1956 (“hereinafter referred to as the Act”), having its registered office at 31, Chowringhee Road, Kolkata-700 016, West Bengal and whose shares are listed on the BSE Limited (hereinafter referred to as the ‘Company’), and appointed in terms of Section 203 of the Act, and has been associated with Company since 9th February, 2016.

3. The Company is a widely held public limited company incorporated on 17th April, 1962 and is engaged in the business of Wind Power and Electric.

4. The petitioner has been arrayed as accused person in complaint no. 35/2019 pending before the Learned 2nd Special Court, Calcutta which was initiated on the basis of a complaint filed by the opposite party under Sections 447 and 448 of the COMPANIES ACT , 2013 for alleged violation of Section 233 (1)(b) of the COMPANIES ACT , 2013.

5. The allegations contained in the said complaint are reproduced below:-

“It is observed from the applications and other documents that total number of shares of the company (M/s Jayshree Chemicals Limited) on cut-off date (14.08.2018) for the general meeting was 2,93,26,457 while for 1,35,90,589 shares votes were given favoring the Scheme. Therefore, in respect of less than 90% of total shares votes were cast in favour of the Scheme. But the Company Secretary Shri Santosh Kumar Lahoti gave false declaration to get the Application under Section 233 of the Companies Act, 2013 approved, by suppressing real facts and thereby attracting the provision of Section 448 of the Companies Act, 2013.”

6. The petitioner submits that the opposite party as the complainant had issued a Show Cause Notice bearing No. ROC/KOL/S-233/SCN/6435 dated 25.03.2019 alleging contravention of Section 233 (1)(b) of the COMPANIES ACT , 2013. By a letter dated 02.04.2019 seeking extension of time for filing reply and by another letter dated 15.04.2019, the petitioner replied to the purported Show Cause Notice bearing No. ROC/KOL/S-233/SCN/6435 dated 25.03.2019.

7. The petitioner states that the complaint case which has been filed by the opposite party as the complainant against the petitioner for alleged violation of Section 233 (1)(b) of the COMPANIES ACT , 2013 is misconceived, without any basis and contrary to law.

8. It is submitted, that the ingredients of the offence as alleged in the Complaint Petition are not attracted at all. Further, the alleged violation of Section 233 (1)(b) of the Act, 2013 in relation to the Scheme of Amalgamation of Fort Gloster Electric Limited (Transferor Company), the wholly owned subsidiary of the Company with the Company (Transferee Company) (hereinafter referred to as the Scheme) is without any substance or merit. The Scheme was approved by eighty shareholders of the Transferee Company holding one hundred per cent of the total number present and voting at the meeting of the shareholders of the Transferee Company held on 21st August, 2018, wherein the shareholders were also given the option of