B.N Viswanathan v. The Assistant Registrar Of Joint Stock Companies, Madras

This is a criminal revision case which has been filed against the conviction and sentence of the Fourth Presidency Magistrate, G.T Madras, in C.C No 4903 of 1951.

The facts are: The petitioner before us, B.N Viswanathan, who was the fourth accused in the lower court, was one of the Directors of the Madras Electrical Industries Ltd., by its Managing Agents the Indian Trades and Investments Ltd. This fourth accused appears to have had the controlling interest in the Managing Agency because out of the ten shares of the Managing agency concern, nine belongs to his wife, for whom he acts, and one belongs to this accused, as pointed out by Mack, J. in his order in O.P No. 1028 of 1951. This accused has also given his address as 310-311 Lingi Chetti Street to the Assistant Registrar of Joint Stock Companies and this is the address of the Managing Agency concern, the Indian Trades and Investments Ltd. also.

In these circumstances on account of the internecine quarrels which seem to have dogged the footpath of this firm from the beginning the company laid its last balance-sheet and profit and loss account before the general body meeting held on 31st March 1949. No balance-sheet and profit and loss account had been laid before a general body meeting of the company before 30-6-1950 as should have been done under the provisions of S. 131(1), of the Indian Companies Act. Therefore, this petitioner and three others were charged for an offence under S. 131 (1) of the Indian Companies Act. This accused was convicted and he was sentenced to pay a fine of Rs. 50.

It is also seen that this petitioner has also been put up along with other Directors for not holding a general body meeting under S. 76 of the Indian Companies Act. It is undisputed that all these directors got convicted under S. 76 and fines were imposed on them and this Court refused to interfere in revision.

The case for this petitioner now as set out by him in paragraphs 9 and 10 of the memorandum of revision is as follows:

“The learned Magistrate failed to appreciate the provisions of Ss. 76, 131 and 133 of the Indian Companies Act, that it is mandatory under S. 76 of the said Act to hold an annual meeting within a calendar year and it is only discretionary to hold other general meetings and that the balance sheet of a company should also be presented only at an annual meeting and not in other meetings and erred in giving double punishment, once for not holding a meeting and again for not laying the balance-sheet before a meeting which was not held. The learned Magistrate should have held on a construction of Ss. 76 and 131 that the mandatory nature of the sections referred to the annual balance sheet and annual meeting. The learned Magistrate ignored the constitution of the company as embodied in the Articles of Association of the company with supplementary provisions under the Indian Companies Act, wherever the Act was permissive and erred in holding that two different meetings were contemplated under Ss. 76 and 133, Companies Act.”

This contention, that no offence has been made out inasmuch as no general body meeting was held within the period prescribed and therefore no question of placing balance sheet arose and that the charge against him as it stands is misconceived and that no offence has been committed by him on that footing has been examined by me in a parallel case in Appayya v. State 1952 M.W.N 266. I followed the Bench decision of the Calcutta High Court in Debendranath Das Gupta v. Registrar Joint Stock Co. Ltd. 1918 45 Cal. 486 and the English decision in Park v. Lawton 1911 1 K.B 588 and held that the Director could not be allowed to rely upon his own default for arranging to hold a general body meeting in order to establish his innocence. Then 1 cited with approval Bhagirath v. Emperor 1948 A.I.R Cal. 42 and pointed out that the argument drawn from misery by the Director that he was helpless and circumstances forced him from pressing on and getting a meeting held, could not be accepted. The same reasoning applies here with necessary changes and the plea put forward by this accused that because a general body meeting could not be held the balance sheet could not be presented is without any substance.

Then we shall examine the allegation of double punishment. S. 76, Companies Act, lays down that a general meeting of every company will be held within eighteen months from the date of its incorporation and thereafter once at least in every calender year and not more than fifteen months after the holding of the last preceding general meeting and that on failure to do so every director or manager of the company who is knowingly and wilfully a party to the default shall be liable to a fine not exceeding five hundred rupees. Then S. 131 (1) regulates the laying of a balance sheet. This balance-sheet, it is stated, should be laid before the company in a general meeting. S. 133 lays down that if any default is made in laying before the company or in issuing a balance-sheet and profit and loss account…………..as required by S. 131 or if any balance-sheet and profit and loss account is issued…………. which does not comply with the requirments laid down by and under S. 131, S. 132, S. 132A…………. the company and every officer of the company who is knowingly and wilfully a party to the default shall be punishable with fine which may extend to five hundred rupees. Thus, two distinct offences are created, viz, a distinct offence for not holding a general body meeting and another offence for not laying the balance-sheet before the company in the general meeting.

It is possible to have a general body meeting under S. 76 without laying the balance sheet and a balance sheet can be laid before a general meeting which need not be one convened under S. 76. Therefore, there is no case of the accused being prosecuted twice and punished twice for the same offence and put in double jeopardy. On the other hand, the same transaction may give rise to several distinct offences and the instant case is one such instance.

Therefore the point taken fails and there are no other grounds to interfere in revision except to reduce the fine to Rs. 10. The excess fine amount if collected will be refunded to petitioner.

N.T.R