N.G. Chaudhari, J. - (1.) In this Revisional application filed by the Asiatic Oxygen & Acetylene Co. Ltd , a public limited company incorporated and registered under the Companies Act, 1913, orders dated 18.8.78 and 6.3.80 passed by the Chief Metropolitan Magistrate, Calcutta in case No. C/1147 of 1978 have been challenged and prayer has been made for quashing the proceedings in the aforesaid case now pending in the 5th Court of Metropolitan Magistrate, Calcutta.
(2.) The case arose out of a petition of complaint filed by the Registrar of Companies, West Bengal on 18 8.78 together with an application under Section 473 Cr.P.C. praying for condonation of delay in the matter of filing the complaint. In the petition of complaint the petitioner company was described as accused No. 1. M/s. Pressed Steel Tank. Company of India Limited, was described as accused No. 2, directors of accused No. I Company were described as accused Nos. 3,4,5,6 and 7 and Secretary of the said company was described as accused No. 8. The substance of the petition of complaint is that report of an authorised other of the Central Government on the basis of inspection was received in the office of the complainant on 7.11.75 from which it transpired that accused No. 1 Company as a lending company had advanced different amounts of loan on different dates during the financial year ending on 31.3.75 as per details given in the petition of complaint to accused No. 2 Loanee company in excess of the prescribed limit of 30% of the aggregate of the subscribed capital of the lending company and its free reserve? without the prior approval of the Central Government. In the aforesaid premises it was alleged that all the accused had contravened the provisions of Section 370 of the Companies Act, 1956 and were liable to be punished under Section 371 of the said Act. The matter was under correspondence and consideration and eventually their petition of complaint was filed on the date mentioned. It was alleged that because of reasons stated in the petition of complaint the cognizance of the offence was not barred by the provision of Section 468 Cr. P C. still as a measure of abundant precaution a separate application for extension of time for taking cognizance of the offence was being filed under Section 473 Cr. P.C. It is to be noted that by the order dated 18.8.78 the then Chief Metropolitan Magistrate purported to record an order that the delay was sufficiently explained and interest of justice demanded extension of the period of limitation and thereupon summons were ordered to be issued. Subsequently it was brought to the notice of the succeeding Chief Metropolitan Magistrate that the aforesaid order though purported to be an order of the Chief Metropolitan Magistrate was not actually signed by him by order dated 6.3.80 the succeeding Chief Metropolitan Magistrate held that the mere omission to sign the order dated 18.8.78 did not vitiate the proceedings and the impugned order was to be deemed as one passed within the jurisdiction of the outgoing Chief Metropolitan Magistrate.
(3.) It is to be noted that the order dated 18.8.78 and 6 3.80 were passed ex-parte after hearing the complainant without giving the accused No. 1 Company an opportunity of being heard.;