The burden of proof that the accused without reasonable excuse had made default is on the prosecution. Once the prosecution proves the default, the onus shifts to the accused to justify the default with a reasonable excuse.

Hemant Gupta, J.

1. The appellant has filed the present appeal under Section 483 of the Companies Act, 1956 (hereinafter to be referred as "the Act") aggrieved by the order passed by the learned Company Judge in a complaint under Section 454 (5) of the Act convicting the appellant and imposing a fine of Rs. 40,000/-.

2. M/s Syp. Chem. (India) Pvt. Limited was ordered to be wound up by this Court on 30.4.1990 vide order passed by Company Petition No. 38 of 1989. The Official Liquidator attached to this Court was appointed as its liquidator.

3. The Official Liquidator issued notice to the appellant on 15.5.1990 calling upon the appellant to file statement of affairs of the company as required by Section 454 of the Act. Similar notices were issued to Pardip Kumar Gupta and Surya Partap Singh who were impleaded as ex-Directors of the company. The ex-Directors failed to file statement of affairs of the company without any reasonable excuse, the Official Liquidator filed a complaint under Section 454(5) of the Act.

4. Learned company Judge found that Surya Partap Singh has resigned as a Director of the company and was not a Director of the company after July 1988. Learned Company Judge also found that Pardip Kumar Gupta was not the Director of the Company as there is no document on the record to show that Pardip Kumar Gupta was, in fact, inducted as a Director or Additional Director of the company. The only record produced is Exhibit PVV1/1, Form No. 32 submitted on July 7, 1988 showing resignation of Surya Partap Singh and appointment of Pardip Kumar Gupta as Director of the Company. Learned Company Judge also found that the inventory prepared at the time of taking over possession by the Haryana Financial Corporation vide Exhibit PW-3/1 is signed by Pardip Kumar Gupta as a witness and not as a Director. Thus, finding was returned that Pardip Kumar Gupta was never a Director of the company or otherwise liable to file statement of affairs of the company as he has denied knowledge about the whereabouts of the account books of the company. However, the appellant was convicted for not filing statement of affairs of the company as the appellant was found to be the Director of the company on the basis of the statement of the appellant herself. Her defence that the affairs of the company were being looked after by Surya Partap Singh and that she is a housewife and not associated with day to day business of the company being a lady Director was not found to be a reasonable excuse in not filing the statement of affairs of the Company.

5. Learned counsel for the appellant has vehemently argued that the appellant though a Director was not in charge of affairs of the company in liquidation. She was not proved to be in possession of the account books of the company. She is as a lady Director was not associated with day to day business of the company and the affairs of the company were being looked after by Surya Partap Singh. It is further contended that in the absence of any proof of account books in the possession of the appellant, the appellant cannot be convicted as the Official Liquidator has failed to discharge the burden of proof which was on the Official Liquidator. It is further contended that the appellant has not been heard on the question of sentence in tenns of the provisions of Section 235 of the Code of Criminal Procedure and, thus, the order passed by the learned Company Judge is not sustainable.

6. A perusal of the statement of appellant appearing as RW3 shows that the appellant has admitted herself to be a Director of the company in liquidation. She has stated that she was not associated with day to day work of the company. Mr. Surya Partap Singh used to get her signatures on cheques etc. She denied attending the meetings of the Board of Directors or that Surya Partap Singh has written to her resigning from the Directorship of the company. Learned counsel for the appellant referred to the cases reported as Official Liqu