JUDGMENT
V. Eswaraiah, J.
1. The petitioner is accused No. 4 in C. C. No. 280 of 2002, on the file of the Special Judge for Economic Offences, Hyderabad. On a complaint filed by the Registrar of Companies, Andhra Pradesh, for the offence under Section 162 of the Companies Act, 1956 (for short “the Act”) for non-filing of returns as required under Sections 159 and 161 of the Act, the said C. C. No. 280 of 2002, has been taken on file for prosecution of all the accused.
2. The case of the complainant is that accused No. 1, is a public limited company and A2 to All, are directors/officers in charge of the company with all the relevant files to which the complaint relates. By virtue of the provisions of Section 166 read with Section 210 of the Act, accused Nos. 1 to 11 were required to hold its first annual general meeting in respect of the first financial year by July 19, 1998, at the latest and by virtue of provisions of Sections 159 and 161 of the Act the annual returns in the prescribed form made up to the said date was required to be filed by all the accused within 60 days, i.e., on or before September 19, 1998. The directors and officers in charge of the A1 company failed to file the said annual returns and therefore they are liable to be punished under Section 162 read with Sections 159 and 161 of the Act. It is stated that the complainant has issued a notice to the accused to show cause why action should not be initiated for contravention of the provisions of Section 162 of the Act. The company has neither complied with the provisions of the Act, nor furnished proper reply to the said notice. Therefore, accused Nos. 2 to 11 are the officers in default within the meaning of Section 5 of the Act and the default commenced on September 18, 1998, and is a continuing offence within the meaning of Section 472 Cr.P.C.
3. Learned Counsel for the petitioner submits that as per Section 5 of the Act “officer who is in default” means the managing director or managing directors, the whole-time director or whole-time directors, the manager or the secretary, etc. But in the instant case there is no averment that accused No. 4, is the whole-time director or managing director and therefore in the absence of any specific allegation it cannot be said that the petitioner is also the officer in default of the company under Section 5 of the Act. Learned Counsel for the petitioner further submits that the petitioner has resigned from the post of director on January 27, 1999, and informed the same to the Registrar of Companies and all directors and therefore the petitioner cannot be prosecuted.
4. Admittedly, the offence said to have been committed is prior to the alleged resignation and therefore the petitioner cannot take defence of the so-called resignation as director. Learned Counsel for the petitioner relied on a judgment of the apex court reported in K.P.G. Nair v. Jindal Menthol India Ltd. [2001] 104 Comp Cas 290, wherein it is held that in the absence of any specific allegation that the accused in charge and responsible to the accused company for the conduct of the business, the complaint is not maintainable. That was a case arose under Section 138 of the Negotiable Instruments Act as there is a specific requirement under Section 141 of the Act to attract liability against the directors unless they are in charge and responsible for issuing the negotiable instrument. In the instant case, it is specifically stated in the complaint that A2 to All are the directors/officers in default of the company with all the relevant files to which the complaint relates for non-filing of returns. Therefore, I do not see any abuse or misuse of process in launching the prosecution against the petitioner herein, who is accused No. 4 and who is also the director and officer in charge of the company.
5. The criminal petition is accordingly dismissed.