IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRR/4526/2024 ARUP MOOKERJEE VS THE REGISTRAR OF COMPANIES, WEST BENGAL WITH CRR/1805/2020 ARCHANA CHAKRABORTY VS THE REGISTRAR OF COMPANIES, WEST BENGAL CRAN 1 OF 2021 For the petitioner: Mr. Ratul Das, Adv.

Mr. Prasanta Naskar. Adv.

Last heard on : 17.03.2025 Judgement on : 28.03.2025

1. These applications u/s 482 of the Code of Criminal Procedure, 1973 have been filed by the petitioners for quashing of proceeding in complaint case no. 43 of 2019 now pending before the Learned Judge Second Special Court at Calcutta u/s 129/448 of the Companies Act, 2013 and to set aside all orders passed therein including orders passed on November 22, 2019, December 23^rd

2019, February 14, 2020, June 29, 2019 and October 9, 2020.

2. The fact of the case in brief is that the complaint case has been registered on the basis of a complaint received from one Prakash Kumar Roy, dated October 4, 2018 alleging non–disclosure of transaction in the Specified Bank Notes during the period 8^th November 2016 to 30^th December 2016 and hence contravention of section 129 along with section 448 of the Companies Act 2013 at the behest of the Opposite Party. The Learned Judge Second Special Court at Calcutta was pleased to take cognizance and issued outright process against the petitioner vide his order dated November 22, 2019, on the basis of the said petition of complaint. The petitioners are the directors of the company namely Balai Lal Mukherjee Private Limited Company duly incorporated under the companies Act 1956 having its registered office at 25 Swallow Lane Calcutta 1, West Bengal and the petitioners have been falsely arraigned and implicated in the instant case where the company has not been arrayed as an accused.

3. The argument advanced by the Learned Advocate appearing on behalf of the petitioner primarily rests on the point of maintainability on the following grounds :-

a) The Complaint Case No. 43 of 2019 filed by the Deputy Registrar of Companies, West Bengal is without jurisdiction as it violates provisions of Section 439 (2) of the Companies Act, 2013 which requires cognizance to be taken only in case of complaint by the Registrar of Companies.

b.) Company is not made an accused which is mandatorily required in light of the judicial precedents of the Supreme Court followed by this Hon’ble Court in judgment of Santosh Kumar Lahoti vs. Registrar of Companies, West Bengal reported in

2024 SCC online Cal 3220 (paragraph nos. 52, 53 and 54) and Raj Sahai vs, The State Of West Bengal & Anr., in CRR 100 of 2020 dated 2^nd February, 2024 . No vicarious liability can be imposed on the Directors unless the Company is an accused.

c.) Charges have been levelled under Section 129 of the Companies Act, 2013 against the Petitioners (Directors) only and not the statutory auditor, but from paragraph 3.1 and 3.2 of the complaint there is no allegation of mens rea or guilty mind against the accused Nos. 1 and 2/Petitioners/Directors. In support of this contention reliance is placed on a judgment of this Hon’ble High Court in Usha Martin Telematics Limited & Ors. Vs. Registrar of Companies, West Bengal reported in 2022 SCC Online Cal

1792 d.) Notification of MCA dated 30.03.2017 as mentioned in paragraph

3.1 is of retrospective effect for which the Auditor has mentioned that the Company is unable to provide details, neither there has been a case of concealment or any contrary fact to the financial statements of the Company. The said Notification was for recording permitted payments and amounts deposited in Bank without any civil or criminal consequence.

e.) Regarding ,related party transactions and violation of Accounting Standard-18 as alleged in paragraph 3.2 is not maintainable as ex facie from accounting Standards requirement for Related Party Disclosures, is not invoked in case of transactions of Rs.

80,50,450/- as would appear from Accounting Mo