- (1.) Instant application has been filed for execution and enforcement of the judgment of this Court dated 5.7.1991 rendered in a complaint under Section 454(5) of the Companies Act, 1956 by the Official Liquidator of M/s. Jaipur Spinning and Weaving Mills Ltd. by which his Director Ganeshi Narayan Poddar was held guilty for breach of statutory requirement of Section 454(3) for not filing the statement of affairs and convicted and sentenced to pay fine @ Rs. 25 per day till such default continued. Ganesh Narayan Poddar assailed that order before the division bench of this Court. He however died during pendency of such appeal. Now in the present application, prayer has been made that the amount of fine/penalty be ordered to be recovered from his legal heirs. Factual matrix of the case, bereft of unnecessary details, is that M/s. Swadeshi Poly-text Ltd., Ghaziabad filed a winding up petition on 15.12.1980 before this Court against M/s. Jaipur Spinning & Weaving Mills Ltd. (for short-the company under liquidation') on the ground of its inability to pay the debts. The company was ordered to be wound up by order of this Court dated 2.12.1983. The applicant herein was appointed as the Liquidator of the said company. He thereupon sent a notice dated 9.12.1983 to all the ex-Directors of the company directing them to file statement of affairs as required under Section 454 of the Act. Two of the Directors namely; C.L. Jaipuria and Banshidhar Somani responded to the notice by asserting that they have resigned from the office of the Directors of the company. They were, therefore, not liable to file the statement of affairs. On enquiry from the office of Registrar of the Companies, applicant found that form No. 32 as required under Section 303(2) of the Act has not been filed before him. Besides, C.L. Jaipuria was shown as one of the Directors of the company in the annual return upto 30.6.1983, which was filed under Section 159 of the Act before the Registrar of the Companies on 1.9.1993. As per the applicant, both were therefore liable to be taken as Directors of the company and consequently liable to file statement of affairs. The statement of affairs in the prescribed form No. 57 was required to be filed under Section 454 of the Companies Act in duplicate by ex-Directors and officers of the company. None of the Directors filed the statement of affairs. Sub-section (3) of Section 454 mandated them to file such statement of affairs on or before 23rd December, 1983, within 21 days of the date of winding up order i.e. 2.12.1983, or if the Court for special reasons allow them to do so, within a period not exceeding three months therefrom. Since they failed to do so, they were guilty of non-compliance of provisions of sub-section (1), (2) & (3) of Section 454 of the Act.
(2.) The complaint was proceeded as a summons trial. Ganesh Narayan Poddar and C.L. Jaipuria appeared before the Court on 8.9.1989 and filed their affidavits by way of statement under Section 313 Cr.P.C. when the matter was listed before the Court on 1.12.1989, they prayed for exemption from the presence. It was given out that this being summons case, Advocate representing them may give statement their on behalf as per the provisions of the Code of Criminal Procedure. The statements were made on behalf of other accused by their counsels. The statement under Section 313 on behalf of accused-respondents P.D. Somani and Ajay Kumar G. Poddar were recorded as stated by their counsel. It was given out to the Court on 23.3.1990 that they did not want to adduce any evidence. Even then, when the matter was listed before the Court on 18.5.1990, time was granted to the accused respondents to produce their defence witnesses. Statements of Shri Bhopal Chand Bhandari, Chartered Accountant and Shri Sanjiv Modi, Chartered Accountant, were recorded on their behalf on 13.7.1990.
(3.) Finally, arguments in the aforementioned complaint case were concluded on 4.1.1991 and the judgment was pronounced on 5.7.1991 by which only Ganesh Narayan Poddar was held guilty and convicted under sub-section (5) of Section 454 of the Companies Act whereas all other Directors were acquitted. The matter was then fixed for hearing and passing appropriate order of sentence on 6.9.1991, on which date, it was held that since in the present case the Official Liquidator was not appointed, therefore, the date on which the winding up order was made, would be taken as relevant date for the purpose of sub-section (3) of Section 454 and the period of 21 days would be counted therefrom. Since the order of winding up was passed on 2.12.1983, the statement of affairs was required to be filed afresh upto 24.12.1983. The accused Ganesh Narayan Poddar was held guilty and liable to pay sentence at the rate of Rs. 25/- per day from 24.12.1983 upto the date default continues. It was further directed that in default of payment of fine, the accused shall suffer 15 days simple imprisonment. The fine was quantified as Rs. 70,250 and it was directed that further amount @ Rs. 25/- per day after the judgment was pronounced, shall be liable to be paid. The order was held in abeyance on the request of counsel for the accused-non-applicant for one month to enable him to avail the remedy of appeal.;