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High Court Of Delhi
NESTLE INDIA LIMITED - Appellant
Versus
STATE OF DELHI - Respondent
Criminal Miscellaneous (Main) 76 of 1993
Decided On : 07/01/1999
Held:
When an offence is committed against a person the Court could take cognizance of the offence either on a police report or on the complaint of the aggrieved person. In both these cases a complaint could be made within six months of the commission of the offence. Clause (b) of Sub-section (1) of Section 469 makes a distinction between an aggrieved person and a police officer, obviously the police officer is not an aggrieved person. He is an officer who is enjoined by law to take steps to bring the offender to book. The position of the Company Prosecutor who is the complainant in the present case is akin to that of a police officer. If a police officer is not the "aggrieved person", the Registrar of Companies would also not be an aggrieved person. An aggrieved person would be one who is directly affected by the acts of commission or omission of another person. In this case the UTI who as transferee of the shares and debentures had made application for the registration of transfer in their name is the aggrieved person if its shares etc., were not registered and transferred in its name within time and not the Registrar of the Companies.
Similar question came for consideration before the Madras High Court in the case of Sulochana (supra) relied on behalf of the petitioners. In that case, the petitioner was conducting chit funds, one of the subscribers reported to the Registrar of Chits (Investigation and Prosecution), Madras (for short the Registrar) on March 27, 1976 that the petitioner had not paid the chit amount due to her. During investigation, the Registrar found that the petitioner had conducted the chit without registration of the bye-laws and without obtaining a certificate of commencement of business, which was in contravention of Sections 3 and 7 of the Tamil Nadu Chit Funds Act, 1961 punishable under Section 56(1) of that Act. Consequently, the Registrar filed a complaint on June 9, 1976 before the Metropolitan Magistrate, Madras for that offence. The question before the learned Judge was whether the Registrar could be termed as a "person aggrieved" by the offence alleged to have been committed by the petitioner. After referring to the relevant scheme of the Code and the case law, it was held that the Registrar could not be said to be a "person aggrieved" by the offences so as to claim the benefit of extended limitation provided under Section 469(1)(b) and (c) of the Code; The Registrar had come forward with the complaint in performance of his official duty and not on account of any grievance felt or sustained by him personally in the contraventions committed by the petitioner. Complaints preferred in discharge of ones official duty are vastly different in character and nature from complaint preferred by persons aggrieved by commission of the offences and they distinctly fall in two different categories and the former is not to be confused with the latter. It was accordingly held that the words "person aggrieved by the offence" occurring in Section 469(1)(b) of the Code should be given a limited or restricted coverage which would be one who is personally and directly affected by an offence and not to any member of the public or even an officer who is charged with the duty of enforcing prohibitory regulations under the Statute. With respect I agree with this legal position.
Section 113 — Prosecution — Limitation would start from the date of knowledge of offence — Complaint filed by lapse of over two years is barred by limitation.
( 1 ) THE three petitioners have been summoned by the learned Addl. Chief Metropolitan Magistrate (ACMM) in a complaint Filed by respondent No. 2 for an offence under Section 113 of the Companies Act (for short the Act ). In this petition under Section 482 of the Criminal Procedure Code (for short "the Code), they are seeking quashing of the said complaint and the summoning order. The Petitioner No. I is a company, petitioners No. 2 and 3 are its Managing Director and the Company Secretary respectively.
M/s. Food Specialities Limited who was incorporated on 28. 3. 1959 changed the name of the present petitioner No. I which was registered on 29. 3. 1990.
( 2 ) BRIEFLY, the facts as alleged in the complaint are that the Assistant Registrar of Companies (Delhi and Haryana) had carried out inspection of the records of the petitioner company on 22/23. 7. 1992 and found the following irregularities/breaches i. e. delay in registering the shares/debentures and remitting to the transferee.
(A) 10,000 (wrongly mentioned as 1,10,000) shares lodged on 7. 8. 1990 were despatched on 9. 10. 1990 - a/c UTI.
(B) 12 Non-convertible debentures lodged on 30. 11. 1990 despatched on 20. 2. 1991 - a/c UTI.
(C) 270 Non-Convertible Debentures lodged on 15. 11. 1990 transferred on 28. 10. 1991 (date of despatch not available) - a/cuti.
( 3 ) THESE are alleged to be offences under Section 113 (1) and punishable under Section 113 (2) of the said Act. A show cause notice dated 4. 8. 1992 was served on the petitioners No. . 1 and 3. (Petitioners have alleged that a reply dated 10. 8. 1992 was sent.) The complaint was filed before the ACMM on 5. 11. 1992 who took cognizance and summoned the petitioners. The petitioners are seeking quashing of the said proceedings. I have heard learned counsel for the parties.
( 4 ) FIRST plea is that the complaint is barred by limitation under Section 468 read with Section 469 of the Code, as it has been filed after six months of the offence. Learned counsel for the State has contested this and has contended that the complaint has been filed on behalf of the Registrar of Companies who is competent to institute the prosecution and thus is the aggrieved person within the meaning of Section 469 (l) (b) of the Code; this complaint was filed within six months of his knowledge of commission of the offence on 23. 7. 1992 after inspection of the records of the accused company. This is disputed by the learned counsel for the petitioner who has contended that the complainant Company Prosecutor or the Registrar of Company is not the aggrieved person and the Unit Trust of India being the transferee of the shares and debentures in question is the aggrieved person for the delay, if any, in registering the same and the offence, if any, is committed, was known to the UTI when it was committed; as per allegations made in the complaint the offence about transfer of shares was committed in October, 1990 and in respect of debentures in January, 1991; and the complaint having been filed on 5. 11. 1992 is beyond six months is time barred and liable to be quashed. He has placed reliance on Sulochana Vs. State Registrar of Chits (Investigation and Prosecution), 1978 0 Crljmad 116.
( 5 ) THE offence alleged is that certain shares and debentures of the petitioner company which were lodged with the accused company for transfer in the name of the UTI were not transferred and/or remitted to UTI after registering the transfer within the period of two months prescribed under Section 113 (1) of the Act.
SECTION 113, so far as relevant, reads as under :-
"113 (1) Every company, unless prohibited by any provision of law or of any order of any court, tribunal or other authority, shall, within three months after the allotment of any of its shares, debentures or debenture stock, and within two months after the application for registration of the transfer of any such shares, debentures or debenture stock, deliver, in accordance with the procedure
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