Monoj Kumar Kukherjee, J. - (1.) The Assistant Registrar of Companies, West Bengal, filed a complaint against the four directors of Ganguly Traders (P) Ltd. of 7, Bipin Behari Ganguli Street, Calcutta, in the court of the learned Chief Metropolitan Magistrate, Calcutta, alleging commission of an offence under Section 210(5) of the Companies Act, 1956, hereinafter referred to as " the Act", By his order, dated November 3, 1978, the learned Magistrate took cognizance upon the same, issued process against the accused and transferred the case to the learned Metropolitan Magistrate, 11th Court, Calcutta, for disposal. After entering appearance, one of the accused, Sri Sanatan Ganguly, filed an application under Section 633(1) of the Act for being relieved of his liability, as a director of the company, in respect of the offence alleged against him. In his application he contended, inter alia, that the other directors were inimically disposed towards him and in spite of his best efforts he could not persuade them to comply with the requirements of Section 210(1) and (3) of the Act, for which the prosecution had been launched. Along with the application he filed some documents in support of his above contention. The complainant and the other three accused persons refuted the allegations by filing written objections. After hearing the parties and considering the materials placed before him, the learned Magistrate rejected the application. Aggrieved thereby, Sri Ganguly moved this court and obtained the present rule.
(2.) At the time of hearing of this rule, a threshold question as to the legality of the procedure followed by the learned Magistrate in disposing of the application under Section 633(1) of the Act cropped up. Since it appeared that the question was of some importance, Mr. Baren Sur, a learned advocate of this court, was requested to appear as amicus curiae and he rendered valuable assistance in finding an answer.
(3.) At the outset, it will be profitable to refer to Section 633(1) of the Act which reads as under: "Section 633(1). If in any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company, it appears to the court hearing the case that he is or may be liable in respect of the negligence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the court may relieve him, either wholly or partly, from his liability on such terms as it may think fit: Provided that in a criminal proceeding under this sub-section, the court shall have no power to grant relief from any civil liability which may attach to an officer in respect of such negligence, default, breach of duty, misfeasance or breach of trust. ";