Pylo Luka Muricken vs Registrar of Companies

S.K. Kader, J.—This is a petition filed by one Pylo Luka Muricken, liquidator, Oriental Union Bank Ltd. (in liquidation), Kaduthuruthy, praying that the order passed by the Registrar of Companies u/s 611(2) of the Companies Act, 1956, directing him to pay additional fee may be set aside on the ground that there was prosecution against him for failure to file the statements required under the Companies Act in time, that the learned Chief Judicial Magistrate, Ernakulam, who tried the case, acquitted him, and, therefore, the present order of the Registrar is "barred by res judicata " and is opposed to article 20(2) of the Constitution of India. An affidavit has been filed by the Registrar of Companies stating the facts of the case and the circumstances under which he happened to levy additional fee u/s 611(2) of the Companies Act, 1956, which will hereinafter be called " the Act ". It is not disputed that there was great delay on the part of the petitioner in filing the statements required to be filed tinder the Act and, therefore, the Registrar filed complaints u/s 551(5) of the Act against the petitioner before the Chief Judicial Magistrate''s Court, Ernakulam, for his failure to file the statements of accounts for the period from July 15, 1971, to July 15, 1973. After the institution of this complaint, the petitioner requested the Registrar to grant time to submit the statements of accounts, on the ground that he was suffering from asthma. Before the criminal court, the petitioner filed a petition u/s 633(1) of the Act praying for the relief thereunder. No evidence was adduced on behalf of the petitioner and the learned Magistrate relieved the petitioner, finding that he has acted honestly and reasonably. It was argued that this amounted to an acquittal. The judgment in this case has not been produced on behalf of the petitioner. It cannot be said that the granting of relief u/s 633 of the Act in a trial for failure to file the statements within time can be equated with an order of discharge or acquittal. The Registrar in his affidavit has stated that the petitioner was relieved by the Magistrate only from his liability to pay fine u/s 551(5) of the Act and not from paying filing fee or additional fee on the documents filed late as required u/s 611 of the Act. The imposition of fine u/s 551(5) in a prosecution for failure to file statements as required u/s 551(1) of the Act is a punishment; while the determination of additional fee u/s 611(2) does not partake the nature of a penalty. The power to levy additional fee, as is clear from the sub-section itself, is without prejudice to any other liability. Section 611(2) of the Act reads thus :

" Any document required or authorised by this Act to be filed or registered, or any fact required or authorised by this Act to be registered, with the Registrar on payment of the fee specified therefore in Schedule X, may, without prejudice to any other liability, be filed or registered after the time, if any, specified in this Act for its filing or registration on payment of such additional fee not exceeding ten times the amount of the fee so specified as the Registrar may determine."

The additional fee contemplated under this sub-section is not a fine or penalty. It is only in the nature of a revenue demand. What has to be mainly considered u/s 633(1) of the Act in a criminal prosecution is, whether the person prosecuted against, has acted honestly and reasonably and he ought fairly to be excused. The delay as such is not condoned by granting relief under this section. u/s 637B of the Act, the Central Government alone has power to condone the delay for reasons to be recorded in writing. Neither the criminal court nor the Registrar has any power to condone the delay. The remedy of the petitioner is, therefore, to move the Central Government u/s 637B of the Act to get the delay condoned. There is no substance in the contention of the counsel for the petitioner that the proceedings of the Registrar u/s 611(2) of the Act is in utter violation of article 20(2) of the Constitution and that the finding of the Chief Judicial Magistrate constitutes res judicata. I have already stated that the decision of the criminal court u/s 633 of the Act is neither discharge nor an acquittal. I do not understand how the relief granted u/s 633(1) of the Act by the learned Chief Judicial Magistrate would constitute res judicata and stand in the way of the Registrar proceeding u/s 611(2) of the Act. There are two decisions, of which one is that of the Madras High Court and the other that of the Allahabad High Court, on the point. In Public Prosecutor, Government of Pondicberry v. AbA.nl Aziz Khan (Amara Pictures Private Ltd., In re) [1970] 40 Comp Cas 130 (Mad) Krishnaswamy Reddy J. of the Madras High Court observed that for invoking Section 633(1) of the Act, criminal intention is irrelevant, that what is relevant is whether the accused acted honestly, namely, in good faith, and whether he had any justifiable reason to escape from the liability and that this section cannot be equated with a discharge or acquittal provided under the Criminal Procedure Code. In Hanuman Mills Pvt. Ltd. v. State [1969] 39 Comp Cas 777 (All) Trivedi J. of the Allahabad High Court held that the demand for additional fees u/s 611(2) is a revenue demand and is neither a prosecution nor a punishment by a court of law so as to fall within the mischief of article 20(1) of the Constitution of India.

Article 20 of the Constitution deals with certain fundamental principles of criminal jurisprudence. The fundamental right guaranteed in article 20(2) enunciates the principle that no citizen should be put in jeopardy of his life or liberty more than once for the same offence. This article incorporates within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution. No one ought to be twice punished for one offence. (Nemo debet bis puniri pro uno delicto). It is essential for the application of Clause (2) of article 20, that (1) there must have been a previous prosecution, (2) the accused must have been punished at that prosecution, (3) subsequent proceeding also must be one for the prosecution and punishment of the accused, and (4) the proceedings on both occasions must be in relation to the same offence. In order to attract this clause, the prosecution must have ended in punishment. The proceedings contemplated under this article, therefore, are proceedings of a criminal nature before a court of law or a judicial tribunal. By no stretch of imagination it can be said that the Registrar is a court of law or a judicial tribunal while he acts u/s 611(2) of the Act. The petitioner has no case that the learned Magistrate has convicted or punished him. What article 20 prohibits is only a second punishment for the same offence.

This petition has, therefore, no merit and the same is hereby dismissed.