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Judgment
Aravind Kumar, J.—The Official Liquidator has sought for taking cognizance of the offence committed by accused for not complying with the requirement of provisions of section 454 of Companies Act, 1956 and trying him for the alleged offence in accordance with procedure laid down in Code of Criminal Procedure by invoking sections 454(5) and 5(A) of Companies Act.
Heard Sri. K.S. Mahadevan, learned counsel for Official Liquidator and Smt. Rajashri, learned Advocate appearing for Sri. Saji P. John.
The contention of Official Liquidator is that company in question was ordered to be wound up by order dated 18-2-2008 and statement of affairs of the company-in-liquidation in the prescribed form, ought to have been filed within 21 days or such extended time not exceeding 3 months. Pursuant to order of this Court, notice came to be issued to all the directors on 4-2-2009 and in response to the said notice, one of the Ex-directors viz, Senarath Kapukotuwa has filed statement of affairs on 17-2-2009 and other three Ex-directors namely Sriyuths Manohar Wikramanayake Vivian, Sushil Chandra Weerasekara and Angelo Patrick have filed their affidavits of concurrence which is still defective. It is stated that respondent herein i.e., Sri. K.R. Ganapathy was the Director (Commercial) of the company-in-liquidation and he has neither filed statement of affairs nor he has filed affidavit of concurrence. As such this application is filed by Official Liquidator for non-compliance of provisions of Companies Act.
On service of summons, respondents have appeared and filed statement of objections and it is stated that respondent had submitted his resignation vide letter dated 2-1-2008 as per Annexure-R(1) from the company-in-liquidation and as such he was not a Director at relevant point of time and he was not required to comply with the demand made by Official Liquidator.
It is the contention of learned counsel for Official Liquidator in reply that respondent has not furnished Form No. 32 filed by company-in-liquidation to demonstrate that the said registration has been accepted and filed before Registrar of Companies.
It is noticed from records of the case, this Court on 13-4-2011 had passed an order in C.A. 16/2011 which was pursuant to the application filed by Official Liquidator u/s 468 of Companies Act, whereunder Official Liquidator was seeking direction to the ex-directors of the company (in liquidation) to hand over the books of account and records of the company and counsel for respondents therein (Ex-Director of the company-in-liquidation) along with Official Liquidator undertook before this Court, to jointly take inventory of books, records and report the same. The said submission was placed on record. Thereafter it was pointed out by learned counsel for Official Liquidator that except certain signatures to be obtained by the Ex-Directors, there was no other compliance required to be made by Ex-Directors. Accordingly, placing on record undertaking given by learned counsel appealing for Ex-Directors and learned counsel for Official Liquidator and, having found that there is no further compliance required to be made by Ex-Directors in respect of company-in-liquidation, this Court by order dated 13-4-2011 referred to supra disposed of the said application. In other words, Official Liquidator did not have any further grievance against the company-in-liquidation or the Ex-Directors except to the extent of obtaining signatures of ex-directors while disposing of C.A. 65/2011.
In the present application, Official Liquidator is now seeking to take cognizance of the alleged offence against present respondent who is the Ex-Director of the company-in-liquidation for not having filed statement of particulars. Admittedly, statement of affairs have been filed by Ex-Directors. Thereafter, objections were notified by Official Liquidator and same was complied and directions was sought for by Official Liquidator against Ex-Directors by filing C.A.65/2011 has been fully complied and as such question of taking cognizance of the alleged offence against this respondent does not arise and also in view of the fact that present respondent has resigned vide his resignation letter dated 2-1-2008 (with effect from 29-2-2008) produced along with statement of objections at Annexure-R1.
In view of the above discussion, C.A. No. 77/2011 filed by Official Liquidator stands hereby dismissed.