Salil K.Roy Chowdhury, J. - (1.) This is an application under Section 633 of the Companies Act, 1956, for relieving the petitioners as a consequence of default and violation of Section 295 of the Companies Act, 1956, in granting a loan to another company being M/s. Associated Industrial Development Co. Pvt. Ltd. The application was presented on 28th June, 1980, and, thereafter/a notice was served on the respondent and directions for filing the affidavits were also given and it also appears that on 2nd July, 1980, there was an ad interim order of injunction in terms of prayer (c) restraining the respondent, the Registrar of Companies, West Bengal, from commencing any prosecution against the petitioners for the default and purchase as mentioned in the respondent's letter dated 12th May, 1980, or in similar notices in respect of the several violations under Section 295 of the Companies Act.
(2.) It appears from the affidavit-in-opposition that the respondent, on 12th June, 1980, filed a petition of complaint before the Chief Metropolitan Magistrate, Calcutta, and it was adjourned till 4th November, 1980, due to congestion in the diary of the said Chief Metropolitan Magistrate. It also appears that prior to the said application by the respondent before the Chief Metropolitan Magistrate a notice dated 12th May, 1980, was served on petitioners Nos. 1 to 4 by the Registrar of Companies, West Bengal, pointing out about the contravention of Section 295 of the Companies Act, 1956, giving particulars of the loans and the amounts and asking for a reply to that notice or show cause within 15 days from the date of the said notice. The company, by its letter dated 27th May, 1980, replied to the said notice of the Registrar, inter alia, stating that as soon as the said contravention was brought to the notice of the company's director concerned, she submitted her resignation from the company which was accepted by the Board on 29th September, 1979, and a return to that effect was filed with the Registrar of Companies, West Bengal, and the said loan together with interest was repaid by M/s. Associated Industrial Development Co. Pvt. Ltd. on 21st January, 1980. Therefore, contravention, if any, has been made good and no offence was continuing on that date. The copies of the notice dated 12th May, 1980, and the reply to the notice dated 27th May, 1980, are annexed to the petition and the present petition was filed on 28th June, 1980, and on 2nd July, 1980, an ad interim order was obtained restraining the respondents from proceeding in any way by way of complaint or otherwise for that alleged contravention under Section 295 by the petitioners.
(3.) As I have noticed earlier, it will appear from the photostat copy of the order sheet that on 12th June, 1980, before the Chief Metropolitan Magistrate a petition under Section 473 of the Criminal Procedure Code, 1973, for condonation of delay in filing a complaint could not be taken up as the diary of the said Magistrate was congested and the same was directed to be put up on 4th November, 1980. After the present application was made and the said interim order was obtained and the same was served on the respondent on 5th July, 1980, on 10th July, 1980, an affidavit of service was filed and directions were given for filing affidavits and the interim order was directed to continue. It appears that on 4th November, 1980, the Chief Metropolitan Magistrate condoned the delay under Section 473 and, after perusing the complaint, took cognizance of the offence under Section 295(4) of the Companies Act, 1956, and personal attendance of the accused was dispensed with. Such order was made by the Chief Metropolitan Magistrate and on the very same day the matter was transferred to the Metropolitan Magistrate's 17th Court for issue of summons and adjourned till 23rd December, 1980, for service return. On 20th December, 1980, summons of the proceedings before the Chief Metropolitan Magistrate was received by the petitioners, the accused therein. On 23rd December, 1980, appearance of the accused was fixed before the Metropolitan Magistrate as will appear from the photostat copy of the said order.;