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OJCR/10/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
CASE No. 10 of 2007
In
COMPANY
PETITION No. 183 of 2003
=========================================================
O.L.
OF HEMANT AUTOMOBILES PVT. LTD. - Complainant(s)
Versus
ASHWINKUMAR
KISORILAL MITTAL & 3 - Accused
=========================================================
Appearance :
OFFICIAL
LIQUIDATOR for
Complainant(s) : 1,MR NITIN K MEHTA for Complainant(s) : 1,
MR
CHETAN K PANDYA for Accused : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 11/03/2010
ORAL
ORDER
Present
Criminal Case has been filed by the Official Liquidator of
M/s.Hemant Automobiles Pvt. Ltd. (in liquidation) under the
provisions of Section 454(5) of the Companies Act, 1956 with the
following prayers:-
(a) That
this Hon’ble High Court be pleased to take cognizance of the default
committed under Section 454(5) of the Companies Act, 1956 and to
issue process against the accused No.1 to 4 to try and punish them
in accordance with the provisions of the law and in view of the
facts stated in Para 7 of above.
(b) That
the Accused No.1 to 4 be also directed to submit forthwith the
Statement of Affairs to the Complainant as on the date of winding-up
orders dated 11.8.2006 with full details as per statutory form.
(c) That
the above accused No. 1 to 4 be directed to attend meeting with the
Official Liquidator under Rule 130 of the Companies (Court) Rules,
1959 and be directed to record their statement thereof.
(d) That
the Complainant’s cost and charges incidental to these proceedings
may be provided for under Section 626 of the Companies Act, 1956.
(e) For
such other and further directions as may be considered necessary
under the facts and circumstances of the case, may be passed .
Affidavit-in-reply
has been filed by the accused Nos. 1 and 2. It is submitted that
both the accused Nos. 1 and 2 had resigned as Directors with effect
from 5.2.2003 and even Form No.32 was also submitted at the relevant
time and therefore, it is requested to discharge accused Nos. 1 and
2.
Now,
so far as accused Nos. 3 and 4 are concerned, as of now, statement
of affairs have been filed even for the period after order of
winding up and considering the affidavit-in-reply, it is requested
by Shri Chetan K.Pandya, learned advocate
appearing on behalf of accused Nos. 3 and 4 to take a lenient view
and it is requested to impose reasonable fine / penalty. Learned
advocate appearing on behalf of the accused Nos. 3 and 4 does not
invite any further reasoned order.
Considering
the affidavit-in-reply filed on behalf of the accused Nos. 1 and 2
pointing out that they had already
resigned as Directors with effect from 5.2.2003, and even Form No.32
was also submitted at the relevant point of time, accused Nos. 1 and
2 are hereby discharged.
So
far as accused Nos. 3 and 4 who have now submitted the statement of
affairs even for the period after the order of winding up and
considering the affidavit-in-reply and the request made by Shri
Chetan K.Pandya, learned advocate appearing on behalf of respondent
Nos. 3 and 4, it appears to the Court that if on imposing fine /
penalty of Rs.25,000/- (Rupees Twenty Five Thousand Only), present
criminal case can be disposed of. Shri Nitin Mehta, learned advocate
appearing on behalf of Official Liquidator of the Company in
liquidation has submitted that even statement of accused Nos. 3 and
4 is required to be recorded. Shri Chetan K.Pandya, learned advocate
appearing on behalf of the respondent Nos. 3 and 4 has stated at the
Bar that they will remain present before the Official Liquidator for
recording their statement on 29th
March, 2010 between
11.00 a.m. to 2.00 p.m.
Under
the circumstances and without recording further reasons, (as
requested by Shri Chetan K.Pandya, learned advocate appearing on
behalf of the accused Nos. 3 and 4) and considering the fact that
statement of affairs has been filed belatedly and considering the
explanation tendered by the accused Nos. 3 and 4 for delay, fine of
Rs.12,500/- (Rupees Twelve Thousand Five Hundred Only)each is levied
upon the accused Nos. 3 and 4 which shall be paid
by the accused Nos. 3 and 4 i.e. (Rs.12,500/- each) within a period
of 4 (four) weeks from today. On payment of aforesaid fine and on
appearing before the Official Liquidator of the Company in
liquidation by the accused Nos. 3 and 4 on 29th
March, 2010 between 11.00 a.m. to 2.00 p.m. for the purpose of
recording their statements and on giving such a statement, accused
Nos. 3 and 4 shall be discharged from criminal proceedings.
Present
criminal case stands disposed of accordingly.
(M.R.SHAH,
J.)
(ashish)
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