The main legal point established in the judgment is the significance of timely compliance with legal requirements, the implications of the limitation period on initiating proceedings for offences under the Companies Act, and the court's authority to discharge the accused based on the bar to taking cognizance after the lapse of the limitation period.

ORDER :

The above company application is filed by accused nos. 1, 3, 4, 5 and 6 in Crl. Complaint No.1 of 2022 filed under Section 227 of the Code of Criminal Procedure and Rule 9 of the Company Court Rules, 1959 seeking discharge.

2. Criminal Complaint No.1 of 2022 is filed under Section 538 (1) of the Companies Act, 1956 (hereinafter referred to as “Act of 1956) for failure of accused, eight in number, to comply with the requirement of Clause (c) of Subsection (1) of Section 538 of the Act of 1956. The complaint is in the matter of M/s. Variety Finance and Traders Pvt. Ltd. (in Prov. Liquidation) which was ordered to be wound up as per order dated 02.07.2009 of this Court in C.P. No.7 of 2007 and the official liquidator attached to this court has been appointed as the official liquidator of the company. The accused were the directors of the company as on the date of the winding-up order. As per the complaint, the ex-directors of the company, accused nos.1 to 6 filed the statement of affairs of the company as per the provisions of Section 454 (1) of the Act of 1956 and Rule 127 of the Company (Court) Rules 1959 (hereinafter referred to as “Rules 1959). It is averred in the complaint that the ex-directors of the company while submitting the statement of affairs of the company submitted a list showing the particulars of original suits filed before various civil courts at Thrissur District such as Munsiff’s Court, Kodungallur and Munsiff’s Court, Irinjalakuda. Ex-directors had submitted that most of the suits filed are decreed and the decrees are under the EP stage and that the cases were entrusted to an advocate at Irinjalakuda. The former Managing Director Sri. K.G. Anilkumar had also given the address of the advocate and the official liquidator had issued Annexure-A letter to the said advocate on 17.02.2011, but no case details were received from him. Thereafter, Annexure-B letter was issued to the advocate on 21.11.2012. For that letter also, no reply was received. Thereafter, the official liquidator deputed an official to the office of the said advocate on 11.07.2013 and a letter was also issued to the advocate through the official requesting to hand over the case details. The advocate had informed the official as per Annexure C report that no cases belonging to M/s. Variety Finance and Traders Private Limited are pending before the Court and most of them are disposed of. Subsequently, two case bundles i.e., O.S.Nos.1529 of 1997 and 628 of 1997 were handed over to the official liquidator which were already decreed and E.P. was initiated. On verification, it is seen that E.P. in O.S.628 of 1997 is already dismissed. On the said matter, the Official Liquidator has again issued Annexure D letter dated 07.07.2014 to the ex-Managing Director to hand over the case bundles. However, there was no response. It is submitted that as per the provisions of Section 538(1) (c) of the Act of 1956, if any person being a past or present officer of a company which, at the time of the commission of the alleged offence, being wound up, does not deliver up to the liquidator, or as he directs, all such books and papers of the company as are in his custody or under his control and which he is required by law to deliver up, shall be punishable with imprisonment for a term which may extend to two years, or with fine or with both. Therefore, it is submitted that since the ex-directors have not complied with the requirements of Section 538 (1)(c) of the Act of 1956, they have committed intentional default without any reasonable excuses in complying with Section 538 of the Act of 1956 and hence liable to be prosecuted. It is also submitted that due to non-compliance of Section 538(1)(c) by the ex-directors, the complainant had issued Annexure E notice to all the ex-directors on 26.04.2022. Even though reply was received from some of the ex-Directors, no Director has produced the case details.

3. Accused nos. 1, 3, 4, 5, and 6 filed the present company app